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Fashion and IP, Part One: Copyright

As New York Fashion Week comes to a close, it seems appropriate to discuss how intellectual-property intersects with the fashion industry.  Fashion is one of the trickier areas when it comes to intellectual property protection, especially copyright. If you launch a fashion brand, IP knowledge is definitely something you might want up your sleeve (pun 100% intended).

There are really four main areas of IP that warrant discussion when looking at protecting your fashion-industry brand: copyright, trade dress, trademark, and design patent. This is part of a series that breaks down the areas of intellectual property that fashion brands should think through.

Fashion and Copyright: The Law

Copyright law offers protection in connection with creative works, including “pictorial, graphic, or sculptural” works (think: paintings, photographs, etc.). A fashion design, though, is protectable under copyright law only under limited circumstances. Specifically, “only to the extent that [it] incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects.”

Say what?

In a nutshell, if a design has a practical use, and you can’t separate that practical use from the design, it’s not protectable under U.S. law. Courts continue to see clothing as having a very specific functional use: to cover us up and protect us from the elements. Thus, a design for an article of clothing or piece of jewelry by itself is unlikely to pass the test. The apparel itself is considered to be a functional thing.

Fashion and Copyright: Exceptions to the General Rule

There are some exceptions, of course. Certain things might qualify for copyright protection. The design of a particular clasp, if it can be removed from the article of clothing or jewelry, might qualify. Likewise, original patterns, prints, or photographs, to the extent those thing appear on different apparel, could also qualify.  In fact, in this case, the court considered whether it was proper for a designer belt buckle to enjoy protection under U.S. copyright law. The verdict? “[S]culptured designs cast in precious metals–decorative in nature and used as jewelry” qualified as creative articles whose function was separable from its artistic features.

The Point: Though U.S. law rarely allows for protection of fashion designs, it is possible under certain limited circumstances. Still, the fashion industry has been lobbying Congress to amend current copyright laws to mirror those in Europe. (Their laws allow for protection of apparel designs). Perhaps one day, Congress will make that change — though efforts by the U.S. fashion industry have been unsuccessful thus far.

Stay tuned for the next post in this series, which will discuss fashion in the context of trade dress.

What’s next?

Click the image below to sign up for Spear IP’s [free] Essential Legal Checklist for Fashion Brands.

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