The “Worst Dressed” on Copyright’s Red Carpet

I LOVE the Academy Awards®. I might be sitting at home, but I am there. ALL there, at least you would think so by my failed attempts at Joan Rivers, may she rest in peace, type commentary of the clothing shown on the E! Red Carpet. Just as surely as the show comes to an end, you will see coverage in the fashion magazines, blogs and entertainment type shows discussing where you can purchase a “made to look like” designer gown at a fraction of the cost.

“How can they do that, Ryanne? The gowns are so unique and lovely. The design houses spent much time, resources and creativity to develop the couture looks.” They are lovely works of art with their attention to detail and uniqueness.  Some are simply breathtaking.  Even though I believe them to be works of art, the U.S. Copyright Office does not share my point of view.  In this part of the law the Copyright Act would definitely receive E!’s Worst Dressed Award. It should be noted this is opposite to several European countries who offer protection to designs.

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 give 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 or the Louis Vuitton insignia, which also functions as a trademark to identify source.

The cornerstone case discussing 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.”

Coach BagOther 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.

Another example of functionality can be seen in landmarks, for example bridges. Copyright is extended to architectural works. The Copyright Act states, “the work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.[Emphasis added] 17 U.S.C. §101. Meaning, the bridge must have some creative elements in order to receive copyright protection.

The purpose of the bridge is to provide a passage way over an otherwise impassable roadway. It has a function. The purpose of the bridge is completely utilitarian. Copyright protects only the elements of the work that are creative expression. Functional aspects will never be subject to protection. In the example of the bridge, the issue would be whether there is any creative element protectable. The second issue would be whether the element in issue, here the bridge, is a solution or building block that others should have the ability to use. It seems more than logical to me that giving someone an exclusive copyright in a bridge would hamper others in very real ways.

While the Academy voters will be splitting hairs over the top awards, the U.S. Copyright Office remains extremely clear about not extending protection to functional elements unless the creative expression can stand separate from the function. Enjoy the fashion. Enjoy the designs, but know that in the U.S. there is no protection. What do you think about the lack of protection for clothing designs in the U.S.? Be sure to follow me Sunday night on Twitter @RyanneDSaucier to hear my thoughts. Take part in the Comments section below and Stay Tuned In!

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