Can You Copyright or Patent Fashion?

Clothes, shoes, handbags, are all items that serve a basic function that is generally useful to anyone. Clothes can keep us warm, shoes protect our feet, and handbags let us carry several different items easily.

While these items come in different shapes and sizes, they all serve the same basic purpose. For example, all shoes fundamentally function the same way—they cover a person’s feet to protect them from walking over potentially injurious debris on the ground. But designer shoes can be ten times more expensive than generic shoes and are often less comfortable or protective.

The value of designer shoes must not derive from their utility, but from fashion. Fashion allows people to express their identities, often differentiating them from some while likening them to others. It can convey to others about one’s personality, culture, and social status.

The value of fashion should not be underestimated. According to the website FashionUnited, the fashion industry makes up 4 percent of the U.S. economy, valued at approximately $406 billion. Given the financial opportunities that fashion offers, protecting the value of fashion designs is an important goal for members of the fashion industry.

Intellectual property law, such as copyright and patent, may be a significant source of legal protection for the fashion industry.

Are Fashion Designs Copyrightable?

According to federal law, original works of authorship that are fixed in a tangible medium of expression are protected under copyright. Importantly, the idea behind a work of authorship is not protected—it is the physical expression of that idea that accords copyright protection.

The law gives authors of such works a temporary monopoly over certain rights regarding their creations, including:

• The right to reproduce the work
• The right to create derivative works
• The right to distribute copies of the work
• The right to publically perform the work
• The right to publically display the work
• The right to digitally transmit sound recordings

Works that meet the criteria of copyright automatically gain protection—registration with the United States Patent and Trademark Office (USPTO) is not necessary to enjoy copyright protection over an original work of authorship.

Therefore, a fashion design must qualify as an original work of authorship fixed in a tangible medium of expression.

Aspects of fashion may easily qualify for copyright protection. For example, fashion designers often conceptualize their work in sketches using pencil and paper. The sketch itself may be protected under federal copyright laws. However, copyright protection over the sketch only precludes another person from reproducing the sketch.

Unfortunately, copyright for fashion design has not been effective at staving off the efforts of “knockoff” artists, who manufacture identical fashion creations. In 2016, this issue was addressed in Star Athletica, L.L.C. v. Varsity Brands, Inc., the U.S. Supreme Court held the way an article of clothing is pieced together generally does not qualify for copyright protection.

However, the Supreme Court recognized that fashion designs for clothing might enjoy copyright protection if they qualify as an original work of authorship when separated from the article of clothing.

The Court in the Star Athletica case held that a fashion design—or “artistic feature”—for an article of clothing may be eligible for copyright protection if:

• “The feature…can be perceived as a two- or three-dimensional work of art separate from the useful article and…
• 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.”

Patents for Fashion Designs

Under federal law, a person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof may obtain a patent…” Patentholders enjoy the exclusive right to use the protected process or invention.

Unlike copyright, the protections afforded by a patent do not arise automatically, but only when the USPTO grants a particular invention or process a patent. The USPTO reviews patent applications to determine whether the invention or process meets the requirements of a patentable subject matter.

To be patentable, a product must meet the following requirements:

• Eligible subject matter: Federal patent law limits patent protection to processes, machines, manufacture, or composition of matter. Additionally, improvements to a process, machine, manufacture, or composition of matter are eligible for a patent.
• Novelty: Patent protection will only be granted to inventions that are not already covered by a preexisting patented invention.
• Non-obviousness: If the invention or improvement would be considered obvious to a person “having ordinary skill in the art,” it does not qualify for patent protection.

There are several subcategories of a patent, including what are known as “utility patents” and “design patents.” A utility patent protects the way an invention is used and how it works, while a design patent protects how an item appears.

Fashion items that are typically eligible for a design patent typically include:

• Shoes
• Handbags
• Hair accessories
• Jewelry

Generally, a piece of clothing serves a useful function—namely, to protect a person from exposure to the elements. However, the aesthetic features of an article of clothing that otherwise have no useful function are typically the focus of fashion.

For Legal Advice, Contact Scaringi Law

Do you have a question or concern regarding a legal issue such as intellectual property protection for your business’ products? If so, you should consult Scaringi Law for legal advice. We are a full-service law firm dedicated to preserving your legal rights and finding a just resolution to your legal issues.

Call our office at (717) 775-7195 or contact us online to ask about a consultation about your case today.