Can you copyright clothing designs?
Yes, sometimes, but in most cases, no. As with every legal question, there’s always general rule and then a mountain of exceptions to that rule. The extent that clothing can be copyrighted is one of those questions that lawyers and judges are still testing the limits of even today.
It might be a fashion faux-pas to copy someone’s style, but it may be a surprise to learn that making a direct or substantially similar copy of clothing, in many circumstances is legal, because clothing designs are rarely protected by copyright law specifically.
To understand how the rules work, it’s good to keep in mind that the general policy of copyright law is to encourage creativity so the public can benefit from that creativity. Because the law exists for the public’s benefit, not to make creators rich, it strikes a balance between giving creators enough rights so that they’ll have an incentive to continue to create, and making those rights limited and temporary enough so that the public can start adding onto the creations and advance culture, technology, and society.
The law wants people to be able to freely express themselves as much as possible without fear of a copyright holder saying: “you can’t express yourself that way, because I’m the only one with that right.” That’s why the law doesn’t protect facts or any language that serves a utilitarian purpose.
If phrases like, “Barack Obama is the 44th president of the United States” or “Turn the screw with a Phillips head screwdriver counterclockwise” could be copyrighted, no one could write a political blog or instructions to build furniture without paying huge licensing fees.
This relates to fashion because courts have concluded that clothing is non-copyrightable for the exact same reason that those phrases are non-protectable, because clothing serves a utilitarian purpose. Yes, clothing does look nice, but its primary purpose—at least in the law’s eyes—is that it keeps us warm, keeps our delicate feet from being cut up by rocks, and covers us up enough so that we meet public community decency standards.
Courts interpreting the copyright law have concluded that these utilitarian uses outweigh clothing’s ornamental features. Keeping in mind that things that are functional and utilitarian can’t be copyrighted, it’s easy to see why the cuts of dresses often don’t meet the requisite levels of originality to deserve copyright protection.
Not even something as seemingly original as a Halloween costume is protectable. While it’s common sense to assume the main purpose of a Halloween costume is to look scary or sexy (or both at the same time), the law rarely falls directly in line with common sense.
In the eyes of the law, even Halloween costumes serve the same utilitarian purpose that all other clothing does: to prevent nakedness.
A. Some elements of clothing are fully protectable by copyright laws.
The seemingly simple rule that clothing can’t be protected gets more complicated when you learn the major exception to it:
“Features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of [clothing]” can be protected by copyright.
It might be helpful to clarify this using the language from an important case on the subject, Brandir International, Inc. v. Cascade Pacific Lumber Co: “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.”
To clarify this further: when a portion of your clothing, if taken off the clothing, could independently meet the requirements for copyright protection then that portion can be protected by copyright.
For example, in Kieselstein-Cord v. Accessories by Pearl, Inc, the court needed to determine whether a designer belt buckle could receive copyright protection. The question came down to whether a designer belt buckle has a visual function that is not tied directly to its utilitarian function of holding a belt together. The court found that generally “sculptured designs cast in precious metals—decorative in nature and used as jewelry,” were separate enough to be protected by copyright even though belts were not generally protected.
Here’s a counterexample where a sculpted design was not protected because the court found that it was utilitarian: In Carol Barnhart Inc. v. Economy Cover Corp, mannequins of the human torso with hollowed backs were denied copyright protection because the court believed that the design of the mannequins was dictated entirely by their utilitarian function as mannequins (which is to display clothes).
B. Clothes may be protected by patent or trademark law.
Clothes and elements of clothing can sometimes be protected by other laws like patent or trademark law. Keep in mind, though, that clothing rarely meets the standards to be patented, and in the unlikely context that it is patented, patent law will protect the clothing very narrowly. Utility patents and design patents are also potentially available if a clothing design is a “new and non-obvious” and provides some sort of novel function. Generally for normal, standard clothing items (shirts, dresses, hats, socks), design patents will be inapplicable.
Sometimes exceptions occur. For example, the sandal company Teva received a utility patent for "how this sandal ‘functions to fit’ rather than ‘how it looks’." [Mary Bellis, http://inventors.about.com/b/2010/09/14/can-an-article-of-clothing-be-patented.htm ]
Design patents are given when someone "invents a new, original, and ornamental design for an article of clothing." For example, "the U.S. Marines have received design patents for their camouflage patterns and combat uniforms." [ Mary Bellis, http://inventors.about.com/b/2010/09/14/can-an-article-of-clothing-be-patented.htm ]
C. Fabric prints may be protected by copyright.
Fabric prints can have copyright protection. While “there is no copyright in the cut of the cloth, or the design of the skirt or jacket as a whole, since these articles are utilitarian,” the print found on the fabric of clothing is copyrightable to the extent it meets the three requirements for protection: fixation, expression, and originality, since fabric patterns exist separately from the utilitarian nature of the clothing.
If you think about this logically, it makes sense. After all, it doesn’t matter whether a design is printed on a piece of fabric or printed on a canvas and displayed in a museum, as long as it meets the minimum requirements for copyright protection, it’s be protected.
Just like any other image though, it’s not very difficult, to make a “knockoff” clothing pattern that’s different enough to deserve protection and steer clear of claims of copyright infringement. “That's why famous designers see knockoffs of their clothing almost immediately after a runway show.” [ Mary Bellis, http://inventors.about.com/b/2010/09/14/can-an-article-of-clothing-be-patented.htm ]
If you have T-shirts with original graphics on them that you made or paid to be made, then the law protects you from others’ copying/distributing/selling that graphic itself without your permission. If you plan on using the design on the shirt commercially, you could consider registering the copyright to take advantage of all of the benefits of registration.
D. Changes in the law
An official caucus on fashion was formed on Capitol Hill with the express purpose of pushing legislation through Congress that would stifle the knockoff industry, something that has been driving the CFDA (Councils of Fashion Designers of America) mad for ages. "We are working on a bill now for copyright protection and we are going to pass it this session," fashion caucus co-chair Carolyn B. Maloney (D., N.Y.) told WWD. If passed, the new bill would allow designers to register apparel, handbags, footwear, belts, and eyeglass frames for three years of copyright protection.
E. Trademark and patent law relating to clothing
In its simplest terms, trademark law protects against people trying to confuse customers into thinking they’re buying something that they’re not. Trademark law is not about prohibiting copied designs; it’s about prohibiting copied “labels” that mislead consumers into believing a copied design is an original.
Counterfeits and fake labels “are absolutely prohibited by law, but it doesn’t provide any protection for the same fashion design when the pirates omit the label . . . One of the challenges we have is that people will go to a show and just sketch it, and by the end of the day, print it out and ship it out on the Internet to another country to make a copy of it.” [Amy Odell, http://nymag.com/daily/fashion/2010/05/fashion_caucus_determined_to_c.html]
To complicate things a little bit, once a clothing design gets so well known that consumers associate that design only with that single designer that makes it, a design itself can receive trademark protection as well. That protection will prohibit anyone from copying the design directly. It will also allow the trademark holder to seize and destroy counterfeit direct copies of the product that might be brought into the country.
However, clothing designs generally only gain trademark protection in the long term, after widespread sale and advertising. This is a very difficult hurdle for clothing designers to surmount, particularly because by the time the design is eligible trademark protection, it may already be out of style.
Design patents are also potentially available if a clothing design is a "new and non-obvious" and provides some sort of novel utility. Generally, standard clothing (like shirts, dresses, hats) will not be eligible for design patents.
The name of your clothing line, if you have one, would be most likely to be protected by trademark laws. However, it's necessary to have comprehensive research on the mark done prior to filing to ensure that there is no possibility of infringing upon another party’s trademark.
This research entails searches of the pending & registered federal and state trademark files as well as the US National Common-Law files. Then, if clear, you can decide if you would like to file for a federal or state trademark. [Shannon Moore, http://en.allexperts.com/q/Trademarks-2140/2010/1/trademark-t-shirt-line.htm ]
Registering a trademark is done either through your Secretary of State or similar organization (for a state trademark) or the US Patent & Trademark Office (for a federal trademark).
If you are only conducting business in one state, then a state trademark could be appropriate. If you conduct (or are planning to conduct) business more than one state or country, you could look into filing a Federal trademark. [Shannon Moore, http://en.allexperts.com/q/Trademarks-2140/2010/1/trademark-t-shirt-line.htm ]
Once a logo or design gets trademark or trade dress status, the mark can be registered with the U.S. Customs Office. Once registered, if someone attempts to import any clothing design featuring those marks without authorization, the U.S. Customs will seize it. This is how producers of high-profile brands manufactured abroad keep counterfeit fakes and grey-market versions of their products out of the United States.
If you are a clothing designer with questions about the extent your designs or you’re a journalist interested in the proposed changes to the law, feel free to contact New Media Rights at (619) 591-8870 or email@example.com for free, pro bono legal assistance.
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