Although there are several outlets for infringed-upon fashion designers to explore, we often focus on trademark rights. Why, you might ask? Intellectual Property law encompasses trademark, as well as copyright, patent and trade dress protections. When selecting an avenue for recourse, a scorned designer/artist/author will strategically choose the best avenue for success on its specific claim. For fashion designers, this is usually trademark-affiliated, for reasons Haute-Law will continue to explore. But for now, I’d like to briefly explain copyright law and why it doesn’t always work for fashion.
The US Copyright Act (title 17 of the USC), offers an exclusive bundle of rights to the owners of a copyright. This is a broad scope of protection that gives the original “author” (encompasses all artists, writers, computer programmers, designers, etc.) rights on their work as soon as it is fixed in a tangible medium. These rights can be sold (transferred) to someone other than the original author. Basically, this means the owner has the exclusive right to reproduce the work (make copies); adapt the work (prepare derivatives); distribute copies to the public; perform the work in public; and display the work in public. These rights are a part of US law to provide incentives for all to create.
In order for a work to qualify for copyright protection it must be sufficiently original. Now, there are many limitations and exceptions to copyright protection, so keep in mind this is all “in a nutshell.” For example, facts and unoriginal material and are not protected. If someone wrote a book containing an exorbitant amount of research and factual information, it may not be protected, but could if it contains expressive elements that are sufficiently original. This is a very low and easy standard to meet. An arrangement of facts and chapters in a novel is a form of expression that may qualify as “original,” so long as it’s doesn’t contain a functional purpose, necessary for another to copy in order to compete. However, if the work is infringing on another’s copyright, it is unoriginal and not protected.
This is where fashion design begins to encounter it’s resistance from copyright protection. The very nature of the fashion business is that it evolves and changes with the ebbs and flows of trends and eras. Not only is it difficult to show evidently that a design is sufficiently original, but it is easy to disprove that it was not independently created. Every design takes its inspiration from another.
An even larger hurdle is trying to argue that a garment is exempt from a specific category of “work” that is explicitly excluded from enjoying copyright protection. This is the “useful articles” category, which includes graphic, pictorial and sculptural works that contain creative aesthetic features as well as utilitarian features. These elements have “intrinsic utilitarian functions, that is not merely to portray it’s appearance.” Clothing is deemed to be a part of this category. However, if you can separate an object’s utilitarian features from the aesthetic features, the creative elements may qualify for protection.
Trying to separate the aesthetic features of a garment from a functional purpose is like trying to win at the stairmaster. You’re going to be working really hard, but in the end you’re not going to get very far. I’m thinking unless your design resembles more of a limited pictorial that is completely separate from the garment, it’s not going to be protected (with plenty of shades of gray of course). Picture a t-shirt with a framed-painting centered on the front. The “painting” is likely to qualify for protection as a separate creative element of the t-shirt. The t-shirt as a whole however, not so much, for the reason that it is too functional, and would grant a single designer the monopoly on t-shirts as a result. Different courts apply tests of varying degrees of stringency for the “separability” analysis for “useful articles”, thus strategy depends greatly on jurisdiction.
Now it wouldn’t be law without a million exceptions. I’ll try not to get too carried away, but take the case of Kieselstein Cord v. Accessories by Pearl (632 F.2d 989), in which the Second Circuit held that under its “conceptual separability” test, a belt buckle qualified for protection because it was shown to be appreciated for its aesthetic appeal. It was a belt buckle so magnificent that it made all the other belt buckles seem dull (sic), but mainly because it was placed on display in a museum. It contained features that were not essential to its life’s purpose as a belt, but so significant to the art world that the Court couldn’t deny it some copyrights.
Famous Kieselstein-Cord Belts
This reasoning wont work for all garments. It’s very difficult to show that your design choices (consisting of different lengths, shapes, hemlines, arrangements, and cuts) do not serve utilitarian functions. They serve generally to clothe, and more specifically to keep warm, to cover, to provide convenience, style, and more. (Color’s utilitarian purpose is something I need to spend more time understanding, so until I do, I’m leaving it out)
Costume design brings up a good point for discussion. Since costumes function (outside of the law) primarily to portray an appearance, they may be arguable as outside the “useful articles” exception and subject to copyright law. The Copyright Office has held costume design to the same separability standards, but it’s much easier to surpass than average garment design. Masks however, are held to portray solely an appearance and are not included in the “useful article” category, so they qualify for protection. (Somewhere, Lady Gaga is smiling. Love her, but she’s so much more costume than fashion)
For fashion design, creativity and function are so closely related that the “useful articles” exception generally bars copyright protection for garments. But is copyright protection something we would want for fashion design? Some might say the free-flow of inspiration is what keeps fashion dynamic. A designer’s success should be based on his/her reputation for creativity, which requires as much inspiration as possible. So legal protection that other works of art might rely on, might hinder fashion, which thrives on constant change.
Stay tuned for more coverage on legal alternatives for fashion design in the intellectual property arena.
