Foundry Law Group Blog

Who wore it better? The grey area of copyright in the world of fashion design and imitations.

Trends in fashion tend to spread like wildfire amongst both retailers and consumers. Clothing companies endeavor to keep up with current styles and popular trends to market to customers, resulting in various products stemming from one “design.”

When Kate Middleton married Prince William in 2011, her wedding dress was immediately replicated by various fashion houses and sold out just as quickly. Similarly, her style choices, along with many other celebrity’s clothing choices, tend to be replicated and sold with amazing swiftness.

How is it that replicas and imitations are so readily available?

The answer lies mainly in copyright and patents – or lack thereof. Designs are typically not copyrighted because the bar for copyrighting a design is incredibly high. Though copyrights are meant to protect innovation and creativity, there is a high bar to protect innovations of utility. Clothing is considered a utilitarian article, which is the main reason why fashion design in general is so difficult to copyright. Dresses, hats, pants, and other basic clothing cannot be copyrighted because they serve a useful purpose. The design is protected under copyright “only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U.S.C. § 101. This test for separability is meant to distinguish between copyrightable work and potentially utilitarian designs.

To better illustrate why clothing in particular is so hard to copyright, consider a favorite article of clothing that has endured the test of time for centuries: jeans. Jacob Davis and Levi Strauss invented the “blue jeans” in 1871, and patented the “copper-rivet” design in 1873. However, there is no registered copyright on the jeans design itself. Why not? Jeans are considered an article of clothing, and, as mentioned, clothing is generally categorized as a useful article that cannot be copyrighted. Considering how today, jeans are a staple in many a wardrobe, it is important that there is no such restriction on the design, since then only the original designer could claim ownership rights, effectively creating a monopoly on the article of clothing.

Furthermore, if a product is copyrighted, it could still be replicated to an extent. Copyright protects against “substantially similar” productions, meaning that unless the replica is seen as “substantially similar” to the copyrighted material, it is not in violation of the copyright. This is the simplest explanation for why we see imitations and knock-offs on the market.

Many other concepts are non-copyrightable because of their utilitarian nature. Words cannot be copyrighted. Imagine if the word “hello” was copyrighted – no one but the owner could use the term and anyone else using it would be subject to copyright infringement. However, words can be trademarked for business purposes as they often serve as a useful and recognizable logo or mark of a business.

What about design patents? While designs can be patented, design patents not only have a high standard, but are also expensive and time-consuming to attain. Design patents protect the ornamental design of a product, and not the product itself – as illustrated in the example on Davis and Strauss’ jeans. In order to gain a design patent, the design in question must be novel and non-obvious. Many would-be patents struggle to meet the “novelty” requirement, as they must demonstrate that their design is new and not already in existence. In application to clothing design, it is easier to see why it is so difficult to establish a design patent when the existing designs of fashion seem to be endless.

Trademarks provide a different kind of protection than copyrights or patents. Trademarks are typically meant to protect the business’ reputation by protecting against misuse and misrepresentation of its trademarked designs. For example, Chanel’s recognizable interlocking “C” logo is trademarked and therefore cannot be used in such a way that it would be a misrepresentation of the brand or cause confusion to the consumer. To this end, designs can be trademarked and any unauthorized use of the design constitutes trademark infringement. Another example would be Burberry’s iconic plaid design – it is not only trademarked, but also copyrighted. Its easily recognizable pattern is representative of Burberry as a trademark and its design is used as the fabric design of many of its products as copyrighted material.

Back to the question of why companies can make replicas: The simplest answer is that there is no copyright or patent on the original design of the clothing or it is copyrighted, but the resulting imitations fail to meet the “substantial similarity” standard required to stand as copyright infringement. In a quick search of similar dresses to Kate’s wedding dress, the average buyer will likely find that the dresses are not identical to Kate’s dress, but still resemble the dress. However, Kate’s dress is arguably a replica itself. The design closely followed the late Grace Kelly’s wedding dress from 1956, both sharing intricate lace sleeves, high waists, and full skirts. This is just one of countless comparisons found in the fashion world. Despite fashion’s tendency to abhor imitation, it still tends to be the “sincerest form of flattery.”

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