Currently, copyright protections are not available for fashion designs. Congress has long considered whether such protection should be granted, and legislation was in fact proposed in 2006 which would have allowed for copyright registration for fashion designs. Despite support from the U.S. Copyright Office, the legislation was not passed, confirming the legislature’s intent to maintain the status quo and keep fashion out of the realm of protection of copyright laws.
Still, a fashion designer, with the right legal strategy, can capitalize on her intellectual property.
I know, I know, I just told you copyright protection is not available for “fashion designs.” Copyright protection is only available for original artistic expression. The Copyright Act specifically states that it is not available for “useful articles.” Both the judiciary and the legislature have contemplated the high level of artistry that goes into many fashion designs, and ultimately determined that the end results of the designs themselves are merely “useful articles”, i.e., items of clothing, handbags, shoes, etc. Because these articles serve a “utilitarian” function and purpose, they are not copyrightable, no matter how unique their designs.
The only way for the design of a garment to acquire copyright protection is if the design can be identified separately from, and is capable of existing independently of, the utilitarian aspects of the "article,” as set out in section 101 of the Copyright Act.
Thus, copyright protection is available for “fabric designs,” i.e., the patterns used on the article, such as a floral design on a skirt. See Peter Pan Fabrics, Inc. v. Brenda Fabrics, Inc., 169 F. Supp. 142 (S.D.N.Y. 1959);Spectravest, Inc. v. Mervyn’s, Inc., 673 F. Supp. 1486 (N.D. Cal. 1987). Patterns are capable of existing independently of the utilitarian aspects of the article. They play no part in the function of the article. A blouse’s usefulness to its wearer is in no way dependent upon its paisley print. Therefore, a designer utilizing original patterns, or otherwise incorporating original artwork into a garment, should always seek copyright protection for those patterns and artwork.
Additionally, much broader protection is available for fashion designs under the laws of the European Union. If you plan to market your work in Europe, it would be wise to seek copyright registrations in the EU. If handled properly, obtaining copyright in the EU could offer certain protections once your goods cross into U.S. territory.
Trademarks can be a very powerful tool in any industry, and can be particularly useful in the world of fashion, where copyright protection is more difficult to obtain. Trademark registrations are relatively easy and inexpensive to acquire. Trademark law provides protection for distinctive names or logos which consumers recognize as an indicator of the source of the goods. Designers such as Michael Kors and Louis Vuitton have achieved tremendous success in incorporating their trademarks into the items themselves. While they cannot seek retribution for copyright infringement when another designer sells a handbag that utilizes the same shape and design elements, the use of trademarks in such a way plays an enormous part in prosecuting counterfeiters.
A designer can also seek trade dress protection in the “overall look and feel of a product or its packaging that signifies the source of the product to consumers.” Trade dress can includes the shape of a fashionable good. However, protection for trade dress is more difficult to achieve than for the mark itself. The designer would have to establish that the particular shape of the item is seen by consumers as an indicator of its source (i.e. the designer or his company who manufactured the item).
A designer can also apply for a design patent, which protects any “new, original and ornamental design for an article of manufacture.” An example of a famous design patent is Jimmy Choo’s “With a Twist” stiletto sandals. However, design patent are difficult to obtain for fashion designs. Because fashion designs are often re-workings of items that already exist, they are not considered “new” under patent law, which requires a degree of novelty or nonobvious for utility patent protection.