I’m going to admit it. I watched the The Unauthorized Saved by The Bell Story made-for-TV movie on Lifetime this past Sunday. [Raises hand] “Hi, I’m Ryanne, and I oftentimes will watch horrible mind-numbing television.” Don’t judge. We all have our guilty pleasures.
Several hours before the premiere of the movie, the Hollywood Reporter released a story located HERE about how many of the signature clothing looks, for example Screech’s suspenders and Lisa Turtle’s over the top hats, would not be seen. In the interview, the wardrobe person for the made-for-TV film stated she could not show or mimic some of those signature pieces due to copyright law. The costume designer explains in detail the lengths she went to in order to avoid infringing on the copyright held in the original costumes featured on the television show.
But, was all that necessary? I think there are strong arguments to say it was not. In a very general sense, the law does not offer copyright protection to clothing. The reasoning behind this is that clothing, while it may be pretty and stylish, serves the primary purpose of being utilitarian. Meaning, to provide protection from the elements, such as protection to our feet with those red-soled Louboutin heels and keeping us warm in the winter with that ever so stylish Tory Burch sweater. While there are some creative elements to the clothing, the primary purpose of it being utilitarian trumps the creative aspect and copyright protection does not exist.
Of course, if the rule were so simple we would not need intellectual property attorneys, like yours truly. The rule becomes more complicated when you look at some of the major exceptions. Fabric patterns are usually one aspect that do fall under the scope of copyright protection. If an aspect of the clothing can be separated from the utilitarian (or functional part) of the clothing, and meets the other requirements for original authorship fixed in a tangible medium, then it can be subject to copyright protection. Think the Coach® fabric design on handbags.
The cornerstone case that discusses the ability to remove the creative elements from the utilitarian aspect is Brandir International, Inc. v. Cascade Pacific Lumber Co. The case stated, “if design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable from the utilitarian elements. Conversely, where design elements can be identified as reflecting the designer’s artistic judgment exercised independently of functional influences, conceptual separability exists.” The court focused on whether the artistic features “can stand alone as a work of art traditionally conceived, and … the useful article in which it is embodied would be equally useful without it.”
Other intellectual property issues, such as trademark and patent, might also exist when it comes to clothing. Examples being the ability to receive a trademark on those red-soled heels or a trademark on the Coach® fabric design on the handbags.
Being an early 90s kid, Saved By The Bell was as much a part of my childhood as Easy Bake Ovens and Cabbage Patch Kids. I’ve seen a few episodes along with a few reruns. I hate to break it to the original wardrobe person for the television show, but the hats the character Lisa Turtle wore were not overly creative nor was there anything overly creative about the suspenders worn by Screech.
The hats and suspenders were not in every scene and the characters oftentimes appeared without their most signature looks. While they helped to give the characters some substance, they functioned on the show in a utilitarian way. It is even arguable that because Screech’s character was portrayed as a geek that suspenders is a characteristic that any “geek like” character in a sitcom would wear, along with perhaps also a pocket protector and eyeglasses held together by tape. Look at Urkel in Family Matters or “The Nerds,” characters from Saturday Night Live featuring Bill Murray and Gilda Radner.
Copyright law does not protect ideas, such as a nerdy character, but rather the original expression of those ideas. In all of the cases where a nerd or a geek character is portrayed there are overarching clothing type aspects used – glasses, suspenders, awkwardly styled clothing. There are certain ideas that are so “nonoriginal” to the portrayal of a character that it is not covered under copyright law, which is the case we have here.
I can appreciate the length the current wardrobe person went to in order to protect intellectual property rights. It was certainly a safer route given the probable budget for the made-for-TV movie. However, giving more of a nod to the original characters would probably not have put her in danger of infringing. The clothes functioned in the show in a more utilitarian way and were not separable from the characters themselves.
What do you think about the wardrobe’s person decision to avoid original elements? For my attorney readers, is there something I am missing? For an earlier post on fashion, be sure to read The Price of Fashion. Take part in the Comments section below and Stay Tuned In!
If you liked this post, please share it and click the FREE Subscription button above to get more! Follow and tweet to me on Twitter where I pass along the latest entertainment law, broadcasting and intellectual property news @RyanneDSaucier
Keep these coming.
It was great seeing you this week.
Jim Rosenblatt Professor of Law Mississippi College School of Law (MC Law) “Let Justice Roll”
Great to see you too! Thank you for the encouragement and support.
Pingback: Can I Resell That Knockoff Bag? | Statute of RyAnne