Fashion Designs
Fashion is an area where there is limited copyright protection. The drawings of dress designs can be copyrighted as a work of art under section 102(5) of the Copyright Act which protects "pictorial, graphic, and sculptural works." But the dress itself cannot be copyrighted nor can the copyrighting of the drawings prevent others from making dresses from those designs.
The Copyright Act defines "pictorial, graphic, and sculptural works as
two-dimensional and three-dimensional works of fine, graphic, and applied art . . . models, and technical drawings . . . . Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.
The part of that definition that is relevant to fashion is the "useful article" clause. Clothes are considered "useful articles" because they are not considered works of art or things transmitting information in the way a photograph or a book does, but rather practical things meant to be used. The Copyright Act's definiton of a "useful article" is "an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information."
Bills have been introduced in several past sessions of Congress to provide for copyright protection for fashion designs but none of those bills passed. No proposals are pending in the current (114th) Congress.
It is possible to obtain a design patent from the U.S. Patent & Trademark Office on a fashion design. Unlike a copyright, which is obtained simply by filing a form a paying and paying a small fee, design patent applications must be submitted with technical drawings, then are compared with existing works by examiners at the U.S.P.T.O. to determine if they are original. The costs (easily $2,000 for filing fees and attorneys fees) and time involved (a year or more from filing to issuance of the patent) mean that few fashion designs are protected this way. The U.S.P.T.O. has an introduction to design patents and how to apply for them. Both The American Bar Association's Legal Guide to Fashion Design and Fashion Law have chapters on design patents in fashion and how to submit an application.
Fabric Designs
The designs on fabric are copyrightable as a "pictorial, graphic or sculptural work." Such a copyright would restrict others from copying that fabric pattern. Under the "first sale doctrine," the copyright gives no power to its owner to restrict the use of a the copyrighted fabric design by dressmakers. The leading case on fabric designs is Peter Pan Fabrics, Inc. v. Martin Weiner Co., 274 F.2d 487 (2d Cir. 1960). Another case that has a good explanation of the issue is Novelty Textile Mills, Inc. v. Joan Fabric Corp., 558 F.2d 1090 (2d Cir. 1977). However, the originality test of the Copyright Act means that very simple designs such as the geometric pattern shown here might not be original enough for copyright protection.
- Copyright of Textile Designs--Clarity and Confusion in the Second Circuit by Thomas EhrlichArticle analyzing Peter Pan decision. Published in Michigan Law Review, vol. 59, page 1043 (1961).
Trademark Law
While copyright law has little relevance in the clothing industry, its intellectual property law sibling trademark law is a cornerstone of protection in fashion. Putting a trademarked name or logo on a knockoff is a Federal criminal offense under the Trademark Counterfeiting Act of 1984. The knockoff merchandise can also be seized by the owner of the trademark.
Brand names such as Vera Wang or Givenchy are trademarked. Logos such as the interlocking LV of Louis Vuitton or the horse, carriage, and coachman of Hermès are trademarked. Occasionally colors in fashion can be trademarked, as with the red lacquered soles of Christian Louboutin shoes, U.S. Trademark Registration No. 3,361,597, shown at right. A federal court upheld this trademarking of a color for a specific use in Christian Louboutin, S.A. v. Yves Saint-Laurent Holdings, Inc., 696 F.3d 206 (2d Cir. 2012). Colors in general cannot be trademarked to give one person an exclusive right to use that color. The trademark can be issued only particular specific uses of a color such as with the Christian Louboutin red soles.
The Federalist Society offers an overview of the relevance of trademark and copyright law to the fashion industry in their video "Fashion and Intellectual Property":
Further Reading
The American Bar Association's Legal Guide to Fashion Design by Call Number: Maurer Law Library KF3086 .A93 2013ISBN: 9781627223195Publication Date: 2014-10-07This is a practical guidebook to all legal issues involved in the fashion business, including contracts, venues for shows. It has good chapters on copyright, design patent, and trademark issues. The Little Book of Fashion law, below, is also published by the ABA but is more anecdotal than this book.
Fashion Law: A Guide for Designers, Fashion Executives, and Attorneys by Call Number: Wells Library East Tower 8th Floor KF3086 .F37 2014ISBN: 1609018958Publication Date: 2014-03-13This book covers the same material as the ABA Guide, above, but is longer, more detailed, and somewhat more technical than it.
The Little Book of Fashion Law by Call Number: Maurer Law Library KF3409.C56 F87 2013ISBN: 9781627221115Publication Date: 2014-06-10Another copy available at IUPUI Law Library. This book, published by the American Bar Association, is more anecdotal than the ABA's Legal Guide, above, and uses court decisions to explain the legal principles.
Fashion Law and Business by Call Number: IUPUI Law Library KF3086 .H47 2013ISBN: 9781402420511Publication Date: 2013-11-07This book is published by the Practising Law Institute, meaning it is more technical and geared toward lawyers.
The Knockoff Economy: How Imitation Spurs Innovation by Call Number: Maurer Law Library KF3080 .R38 2012ISBN: 9780195399783Publication Date: 2012-09-17This volume argues that the lack of copyright protection spurs innovation and creativity in the fashion world.
The Textile Reader by Call Number: Fine Arts Library NK8804 .T49 2012ISBN: 1847886353Publication Date: 2012-03-13Contains the essay "Embroidery pirates and fashion victims: textiles, craft and copyright" by Kirsty Robertson.
A Guide to Filing a Design Patent Application by Call Number: Maurer Law Library U.S. Government Documents C 21.14/2:D 46/2009Publication Date: 2009This short guide is the U.S.P.T.O.'s own guidebook and clearly states the requirements for filing a design patent. A PDF version of this is available at http://www.uspto.gov/web/offices/com/iip/pdf/brochure_05.pdf
Trademarks and Unfair Competition by Call Number: Maurer Law Library KF3180 .P367 2010ISBN: 9781422480595Publication Date: 2010-08-01
Trademark and Unfair Competition in a Nutshell by Call Number: Wells Library, East Tower, 8th Floor KF3180 .J26 2013ISBN: 0314163417Publication Date: 2013Additional copies available in the Maurer Law Library at the Reserve Desk. This is a introduction to American trademark law. It was written by a law professor at IU Bloomington.
