Corncob Pipe? IP Protection for Costumes

IP protection for costumes and uniforms is slightly different than the protection allowed for regular apparel, as costumes are a special subset of your ordinary fashion item. As previously discussed, copyright protection is sometimes difficult to come by in the fashion industry. Apparel on its own serves a "utilitarian" function by clothing us, adorning us, and keeping us warm and stylish. But what of costumes? Is a costume a "useful article"?

Historical Treatment of IP Protection for Costumes

In the case of Chosun International v. Chrisha Creations (circa 2005), the primary issue was whether "animal-themed children's costumes" (that is, a collection of "bodysuits" and "sculpted hoods") were copyrightable. Costumes serve a different purpose than ordinary clothing. A costume's function is to entertain and to help the wearer, look scary (or not), or take on or mimic someone or something else. In Chosun, the court considered whether components of the "useful articles" (the costumes) could be removed from the items themselves without adversely impacting the costumes' functionality. Such separation could be physical (i.e., physically removing the functional items), or conceptual (whether the design elements could be conceptualized as existing independently of their utilitarian function). The court decided that it was possible that functional elements of the costumes could be separated from the overall design and -- you guessed it -- that meant the costume designs were eligible for copyright protection.

The 2015 Update: IP Protection for Costumes

In the more recent case of Varsity Brands et al v. Star Athletica, the Sixth Circuit Court of Appeals used a "hybrid approach" to determine whether the designs for certain cheerleading uniforms were separable from the utilitarian function of the uniforms. (If you're curious, the majority concluded that a cheerleader uniform's utilitarian function is to "cover the body, wick away moisture, and withstand the rigors of athletic movements.")

Using this hybrid approach, which asked whether the designs were objectively necessary to the uniforms' useful function, and whether the designs could be separately imagined as independent artistic works, the majority opinion reasoned that the stripes and zigzags on the uniforms (like those pictured above) were decorative, not functional, and therefore protected.

The Point: In terms of IP protection for costumes or uniforms, though it seems like an exercise of creative writing to come up with the "utilitarian function" of a costume or uniform, the courts seem to recognize a design/utility separation that doesn't exist (or is, at the very least, more difficult to apply) in the case of ordinary clothing. This makes it more likely that a costume is protectable under U.S copyright law (as opposed to a sweater-dress design).