Fashionable Copyright

You are a designer, an artist, a creator. For you, it goes beyond a killer dress or a fierce suit; for you, it's an artistic expression of epic proportions. Your vision coming to life in the form of clothing - your masterpiece! After working so hard on your pieces, you decide to show your wares at New York Fashion Week. Your show is a hit! You are elated and worried at the same time. Thoughts race through your mind - "Can I protect my designs?" "Will the knock offs spring up like wildfire and flood the market before I get there?"

These are all valid concerns. No designer wants their hard work to be turned into a cheap imitation. So, what is a designer to do? Let's address the first concern, can you protect your designs? Unfortunately, U.S. copyright law generally does not offer protection for clothing designs because they are seen as useful articles. That is, they perform the utilitarian function of covering the body which is often not separable from the artistic expression. You must be feeling bummed right about now like all hope is lost. But wait, a glimmer of hope came over the horizon in 2017 when the U.S. Supreme Court handed down its decision in Star Athletica, L.L.C. v. Varsity Brands Inc. In that case involving the arrangement of shape, colors, stripes and chevrons on cheerleader uniforms, the court ruled that the “artistic” feature on clothing designs can be protected by copyright, “Yay!”.

However, before you start doing the happy dance, it must be noted that your entire design will not be protected but only the artistic elements that can pass the two-part test which was laid out by the court. Therefore, the artistic feature of your design will get copyright protection if the feature:

 “(1) can be perceived as a two- or three-dimensional work of art separate from the useful article and

(2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.”

As you can see, passing this test will not be an easy feat. Think about it, how many times do you design clothes with something extra on it? It may reek of unfairness that fast fashion retailers profit off of your designs while you are still trying to make it to market and your European counterpart designs are protected. So, what can you do? Here is where we address your second concern i.e. getting to market first. You don’t have to view the situation as a lost cause but an opportunity to pull a “fast one” on fast fashion. You could do so by simply “knocking off” your own designs and selling it under a budget label instead of your couture line and you will reap the benefits of the high- and low-end markets!

If this article has inspired you to take action and you need help figuring it all out or you just need a fashion lawyer in your corner, please feel free to contact me at 732-626-6402 or eldonie@masonfirmllc.com