Copyright and the Fashion Designer
How Do Creatives Protect Their Work?
From photographers to entrepreneurs alike, creatives are able to secure rights to their work through things like trademarks, patents, and copyrights. Each one of the preceding protects something different, though all three share the common goal of preventing others from replicating, using, or copying the creator’s work. Trademarks protect brand names and logos. Patents, of which there are different kinds, protect ideas and inventions. Copyrights protect “original works of authorship,” like books, movie scripts, photographs, and songs.
So Where Does Fashion Design Fit In Here?
United States copyright law states that copyright protection is meant for “original works of authorship, including pictorial, graphic, and sculptural work.” The first key-word here being original. Courts have determined that a work is original when it is created independently by the creator and has some degree of creativity.
The law then defines “pictorial, graphic, and sculptural work” as “including two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings.” This means that a fashion designer’s sketches and drawings can be protected by copyright. But what happens when those designs come to life?
Is the actual product – the dress, the shoe, the skirt – copyrightable?
That’s where things get sticky. In the early 1900s, the United States Copyright Office established that useful items are not subject to copyright and deemed clothing a useful item. Since the purpose of clothing is to cover the body, it has a utilitarian function. So, the design of something that is considered utilitarian can be copyrighted only to the extent that its design features can be identified separately from its utilitarian aspects. This is known as the “separability test,” and it has been scrutinized by state and federal courts for years.
Here’s an interesting example. In 2017, the Supreme Court of the United States dealt with this very issue in a case where the question was whether decorative elements of a cheerleading uniform (i.e. the chevron pattern, stripes, colors, and shapes) were copyrightable. The Court in Star Athletica, LLC v. Varsity Brands, Inc., determined that there are two parts to the above-referenced separability test: 1) whether the decorative element can be identified separately from the utilitarian aspects of the article as having its own pictorial, graphic, and sculptural qualities, and 2) whether the decorative element can exist independently of the utilitarian aspects of the article. The Court reasoned that the decorations on the cheerleading uniform: 1) were their own two-dimensional works of art and 2) could be taken off the uniform, placed onto another medium, and be considered a work of art deserving of copyright protection. Ultimately, the Court decided that the decorative designs were eligible for copyright protection. This case was a small victory for fashion designers in its recognition that maybe not all, but at least some designs on clothing may be copyrightable.
What Does This Mean For Fashion Designers in the United States?
Despite the ever-present grey area in copyright law for fashion designers, there are still ways to protect a designer’s work.
A good first step would be to protect your brand (i.e. your brand name and logo) by registering such for a trademark. There are other protections you can secure with trademarks, which I will explore in a later blog post. Next, you can choose to protect the actual content of your brand by registering a copyright for your drawings and sketchbook designs. And, some designs on clothing may be eligible for copyright protection given the outcome of the above-described case.
Another option would be to apply for a design patent, which protects design elements of a functional product. Note that these designs have to be novel which tends to be a high threshold for designers to attain and thus, design patents can be difficult to acquire. Plus, the application process for a design patent is lengthy and costly, which is why big-name fashion houses with plentiful resources, like Louis Vuitton and Yves Saint Laurent, have been able to utilize this option. Many fashion designers do not have this luxury. And, design patents last at least 14 years, which may not even be worth it given the cyclical and seasonal nature of fashion.
As of now, options may seem limited for fashion designers to protect their work as compared to the options for other creatives. But, there is hope – the conversation has only just begun.
“The joy of dressing is an art.” – John Galliano
About the Author
Madeleine Shroyer is our firm’s rising expert on fashion and non-profit law. During her law school career at SMU, Madeleine interned at a boutique law firm, which taught her the importance of teamwork and effective communication.
Learn more about Madeleine Schroyer HERE.