Copyrights in the Fashion Business? It All Depends…

What is copyrightable in the fashion industry is confusing. Clothing like pants and dresses, aren’t copyrightable. But certain features of clothing, like the print on fabric, might be. Watches likewise aren’t copyrightable, but jewelry is. So where’s the line?
In the fashion business, it all comes down to whether the work is a “useful article.” This article explains what that means and gives real examples of what can and cannot be copyrighted in the fashion business.
COPYRIGHT BASICS 

What Copyright Protects

Copyrights protect original works of authorship, such as books, music, movies, pictures, graphics, and sculptures. To be eligible for protection the work must be: 1) minimally creative; 2) independently created, and 3) fixed onto any tangible medium (e.g., a digital photograph). Owning a copyright means that you have the exclusive right to exploit the work, like make and distribute copies of the work (among other things). It also gives you the right to stop others from exploiting your work.

Copyright Creation, Registration and Notice

Copyright protection begins automatically – as soon as it is fixed into some tangible form. For example, copyright protection begins as soon as a photo is taken. Protection begins whether or not the work is published, and whether or not the work is registered with the U.S. Copyright Office.
Registering a copyright is recommended since registration is required to file a lawsuit. If registered in a timely manner, the copyright owner is also entitled to additional damages, like attorney’s fees and statutory damages. It is also relatively cheap to register a work: between $35 and $55 per copyright.
It is also recommended, though not required, to put a copyright notice on your work to give notice to the world that you claim copyright ownership. Notice should look like this: © [year] by [name of owner]. (You can also use the word “Copyright” or “Copr.” in place of the ©).

What is Not Copyrightable

Copyright protection does not extend to ideas or concepts, like the idea of taking a photograph of dancing monkeys. Telling someone, like a prospective business affiliate about your idea, does not give it protection. Rather, that person is free to run with it as their own unless there is a confidentiality agreement or some other agreed upon restriction.
Copyright also does not protect titles, short phrases or slogans. For example, it won’t protect a written tagline used for your fashion brand. It may, however, protect a logo design if minimally creative.

Copyright also does not protect useful articles. And, that’s where fashion comes into play.  

A useful article is one whose purpose is functional. Clothing is considered functional. But wait! There’s a loophole! “Features” of clothing may be protected if: 1) they can be perceived separately from the clothing, and 2) could otherwise qualify as a protectable artistic work – such as a two or three dimensional work (like a painting or a sculpture). Sometimes it is difficult to decipher what constitutes a useful article and what constitutes a protectable feature – and the lines are often blurred. Below is a summary of the types of things in the fashion industry that are protected/unprotected by copyright, and how to decipher if they are useful articles.

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CLOTHING ELEMENTS THAT ARE CONSIDERED FUNCTIONAL
Clothing designs, meaning the shape, style, cut, and dimensions of a garment, are not protected by copyright because they are useful articles. Their purpose is to cover and warm the body – even if they are also really cute. For example, the following design elements are not copyrightable because they cannot be perceived separately and would not qualify as an independent artistic work.*
non copyrightable fashion examples
Screen Shot 2018-02-16 at 11.56.37 AM

For example, one court ruled that the Fiesta Fashion blue prom dress (right) had no copyright protection even though it had decorative sequins on the bodice, ruching at the waist, and tulle layers on the skirt.

The court found that each of those components are inextricably connected to the garment, and cannot exist independently as an artistic piece of work. Because there was no copyright on the dress on the above, the court found that the Jovani dress on the left did not infringe. (See Jovani Fashion, Ltd v. Fiesta Fashions).

CLOTHING ELEMENTS THAT ARE SEPARABLE FEATURES
While many clothing design elements are not copyrightable, there are many features of clothing that do qualify for copyright protection. Below are examples of this “loophole” in practice.

Surface Designs

In a much talked about case, the U.S. Supreme Court recently ruled that arrangements of lines, chevrons, and colorful shapes appearing on the surface of cheerleading uniforms may be eligible for copyright protection (see pictures below). The Court found that those features can be perceived independently, and have artistic value. (See Star Athletica, L.L.C. v. Varsity Brands, Inc.).
chevron examplesHowever, it must be remembered that even though the features (e.g., chevrons) are capable of copyright protection, the shape, style, cut, and dimensions of the cheerleading uniform are not capable of copyright protection because they are functional.

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Fabric Designs & Textiles

Fabric designs are also eligible for copyright protection. The design on the fabric can be conceptually separated and exist independently from the useful article (clothing). Take for example, these shorts from Lily Pulizer (below left). You can imagine the fabric (below right) perceived separately and placed on any other medium, like a painting.
lily pulitzer examplesOld Navy made similar shorts (pic below). Lily Pulitzer sued.  Old Navy settled quickly.

Since fabric designs are copyrightable, you cannot copy a design you see at a fabric store, even if you buy the fabric. But if you design the fabric yourself, then you own the copyright, and you can stop others from copying it.

Appliques, Embroidered and Decorative Stitching

Original features like appliques and embroidered accents on clothing are copyrightable – so long as that feature can be perceived as art separate from the clothing. For example, the flower appliques on the vintage holiday sweater (below left) and the  embroidered flowers on the Gucci jeans (below right) can be separated and perceived as their own artwork.

appliques examplesShoe Surfaces

Like clothing, shoes are considered useful articles. Their shape, style, cut and dimensions may not have copyright protection. An example is Jessica Simpson’s Calie Pump (below left). The print on the shoes, like fabric, may be copyrightable so long as it meets the criteria. An example is the Sam Edelman Haroldson heel (below right).
shoe examples
So, what about the pom pom on the toe of the shoe? Does it have artistic value capable of copyright protection? The answer may be found in the interesting case of Puma v. Forever 21. Puma (endorsed by Rihanna) developed a fur slide (below left pic). Forever 21 came out with a similar fur slide (below right pic). Puma sued Forever 21 for copyright infringement (among other things).  
rihanna shoe examplePuma claims that the copyrightable features of the fur slide include “a wide strap decorated with plush fur extending to the base of the sandal.” Does the “wide plush fur strap” qualify as a work of art, such as a sculptural work? This is an interesting case to watch on the minimal creativity necessary for copyright protection.

Handbags, Belts and Buckles

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Handbags, belts and buckles are considered useful articles, and not capable of copyright protection. However, their features, like surface print on a bag or belt, or ornamental design on a buckle, might be if they are minimally original. See the chart below for examples of what’s copyrightable and what’s not.

copyrights chartWatches

Generally, watches are considered useful articles and are not copyrightable.  However, if the face of the watch has a unique design (other than the numbers) or the band includes ornamental features, then that design or feature might be copyrightable.  Examples are below.
watches copyright examples

Jewelry

Jewelry is not considered to be a useful article because it’s main purpose is ornamental. It is copyrightable so long as it is sufficiently creative. A simple circular bangle (below, left) will have a very thin, or no copyright protection compared to an ornate bracelet (below, right).

bracelet example
In fact, Brighton Collectibles recently sued Macy’s for a similar (and much more expensive) bracelet design. (Brighton Collectibles, LLC v. Macy’s Inc.) The case is currently pending. 
bracelet copyright examples

DETERMINE IF YOUR DESIGN HAS COPYRIGHT PROTECTION
Now that you know the basics of copyright protection, take a look the inventory of creations you’ve designed and determine if there are any original features–owned by you–that could be protected by copyright. If there are any, then give the appropriate notice with the © mark and file a copyright registration today!

*Credits clockwise: “The Puffy Shirt,” Seinfeld, Jerry Seinfeld; bigpicturesphoto.com, Kanye West; Jovani Fashion; Getty images, Matthew Williamson coat, Kate Middleton; AliExpress, 100 pcs Mix-colored Five Pointed Star Shaped Wooden Button Cloth Buttons; Shein Contrast Top-stich Denim Jacket; Opening Credits, Sex and the City, Sarah Jessica Parker; Stuart Wilson/Getty Images, George Clooney.

© 2017 by Anne E. Kearns  (visit www.annekearnslaw.com)This article is for informational purposes only and not meant as legal advice. Always contact a lawyer when seeking legal advice.