Dressing Room: Copyright Protection When It Comes to Clothing Design

Sep 15 2016

by Angie Avard Turner

akathryn-mccrary-photography-atlanta-lifestyle-photographer-waiting-on-martha-54
photo: Kathryn McCrary of Heery’s Clothes Closet in Athens, GA

In honor of New York fashion week I thought it appropriate to discuss the issue of copying designs.  We see it happen, seriously, all the time.  And we ask ourselves, “How is that possible?”  It’s a sticky subject, and is filled with many intricate legal nuances.

Recently,  I was reading an article that brought to my attention that even, arguably, the most famous dress of this century is not exempt from a little legal fray. Yes, ma’am, the Duchess of Cambridge’s dress came under a great deal of legal scrutiny because of copycat allegations.  So, in a nutshell, here is what allegedly took place. A designer, who owns a small studio submitted designs to the Duchess in 2010. Receipt of these designs were acknowledged by the Duchess, and the designer was told that she would be contacted if the royal wanted to see more designs.  Fast forward to that day in late April, when we all waited to see what “the dress” would look like.  Alexander McQueen, it was suspected by many would be credited with the design.  Indeed, that turned out to be the case.  However, according to Christine Kendall, “the dress” was a copycat of the designs she submitted to the Duchess.  Of course, Sarah Burton, who designs for Alexander McQueen, denied seeing the sketches, know the other designer, or copying her designs.  So the big question is, who is right?  (Let me just say, before we go any further, that this is playing out across the pond, so the laws of that country apply.  However, similar scenarios arise countless time here in the US, where our laws would govern.) So again, who would be right if this happened over here?

Well, it’s complicated. After first hearing the recount of this situation, I found myself having more questions than answers.  The general rule in copyright law is that clothing, along with lots of other products, is known as a utilitarian object or useful thing.  That may seem obvious, however in legal terms that means that because of its usefulness there is nothing original or unique enough that the design could be protected.  However, as is true with just about every bit of the law I know, there are exceptions to the general rule.  Here are a few to consider.

  1.  Components of designs may be able to achieve copyright protection, without the entire garment being worthy of protection.  The rule states specifically-features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of clothing can be protected by copyright. If the item can be removed from the garment and maintains an element of conceptual separability apart from its usefulness, then it can be protected.  I know, what in the world does that mean!  It’s tricky; sometimes, judges aren’t even sure. Alas, it is one of the rules.
  2.  Another exception to the general rule is that clothing may receive protection under trademark or patent law rather than copyright law.  These are three very distinct and some what different bodies of law that fall under the same large umbrella of intellectual property.
  3. Finally,  patterns on a useful thing may receive copyright protection.  So when you think about designing something that is very close to Lilly Pulitzer, think again.  All of those fabulous patterns are protected by copyright law even if the style or cut of the garment is not.

So going back to the big wedding…What do you think?  Can you see elements that would be protectable?  Are all wedding dresses created equal?  I would love to hear what you think!

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Angie Avard Turner View More Blog Posts from this Author

Angie Avard Turner is an attorney who exclusively represents clients in the creative arts industries including retailers, wholesalers, artists, photographers, event planners, bloggers, and other creative service providers.  She is licensed to practice law in the state of Georgia, but she is able to handle copyright and trademark issues nationally.  For more information regarding her practice, visit www.angieavardturnerlaw.com­­­. Angie is also the owner and creative director behind Hype Strype, a fine stationery company that caters to those who love bright colors and patterns. 

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