Copyright

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.

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.

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":