How Is Fashion Protected by Copyright Law?

This week, you may have seen photographs and videos of long runways where models donned the season’s latest trends and styles. It’s Fashion Week 2022– the time of year when designers finally get to show off months of hard work through their craftmanship of various clothing and accessories.

What you don’t see during Fashion Week is the laborious process of designers conceptualizing new creations, sketching them out, and capturing them in the fabrics and materials of the clothing they craft. But are these fashion designers rewarded for all their hard work and creativity by copyright—more to the point, are their fashion designs protected by copyright law? The short answer is that it depends.

Copyrightability in Fashion

According to the Merriam-Webster Dictionary, fashion is defined as “the prevailing style of a particular time.” In the fashion industry, trends and designs change from season to season in the form of various elements, which usually manifests itself in a variety of colors, silhouettes, types of fabrics, unique cuts of fabric, and prints.

When determining whether and how fashion is protected by copyright law, it’s important to understand the scope of copyright protection for fashion items. The Copyright Act does not protect ideas, concepts, or facts. If the color of chartreuse, polka dots, or a simple balloon sleeve is the latest trend, copyright law protections do not extend to those design elements alone. In fact, the Copyright Office Compendium notes that the Copyright Office generally refuses to register “[c]ommon patterns, such as standard chevron, polka dot, checkerboard, or houndstooth designs, “geometric figures and shapes,” “alphabetic or numbering characters,” or simple arrangements of such unprotectable elements.

For example, the Copyright Office rejected Coach’s registration application for a fabric design containing “a pattern consist[ing] of two linked ‘C’s’ facing each other alternating with two unlinked ‘C’s’ facing in the same direction.” A New York federal district court held in Coach, Inc. v. Peters, that the Copyright Office exercised its proper judgement in rejecting Coach’s application since the Copyright Office reasoned that under copyright law, mere letters of the alphabet and the arrangements of that letter ,“C,” were not sufficiently creative or original enough so that the design was protectable under copyright law.

Fashion As a “Useful Article”

The Copyright Act also does not extend protection to useful articles, which is defined as “an article that has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” There was a time in the not-too-distant past when the Copyright Office generally refused to register claims to copyright in clothing or costume designs on the “ground[s] that articles of clothing and costumes are useful articles that ordinarily contain no artistic authorship separable from their overall utilitarian shape.”

But the Office changed its policy in 1991 when it released a Policy Decision about its examining practices with respect to “fanciful costumes.” Specifically, the Office noted that it would register these works “if they contain separable pictorial or sculptural authorship. The separable authorship may be physically separable, meaning that the work of art can be physically removed from the costume, or conceptually separable, meaning that the pictorial or sculptural work is independently recognizable and capable of existence apart from the overall utilitarian shape of the useful article.”

But in 2016, the U.S. Supreme Court abandoned the physical separability test in the case, Star Athletica v. Varsity Brands. The Court set out a standard for determining copyrightability in fashion designs and for useful articles in general in a case about the copyrightability of cheerleader unforms. According to the Court, while copyright law may not protect the general notion of “style” it does protect design elements which:

“can be perceived as two- or three-dimensional works of art separate from the” fashion item itself; and
“qualify as a protectable pictorial, graphic, or sculptural work, either on its own or fixed in some other tangible medium.”

This is the standard the Copyright Office and courts must use when evaluating copyrightability in useful articles like clothing and fashion accessories (including jewelry).

So What Fashion Designs Are Protectable Under Copyright Law?

By way of illustration, here are some design elements where fashion may be protectable under copyright law:

Graphic Designs: Copyright law would protect the designs on the surface of fashion items just as it protects designs on the surface of a canvas or sheet of paper. For such protections to apply, copyright law only requires that the designs on the surface of fashion items (like the designs contained on the surface of any other medium) demonstrate a very minimal amount of creativity. The U.S. Supreme Court also addressed this issue in Star Athletica v. Varsity Brands, stating that “two-dimensional designs appearing on the surface of [clothing]” including “combinations, positionings, and arrangements” of shapes, colors, lines, etc. are protectable by copyright.”

Textile Designs: Similarly, a producer of fabrics can rely on copyright to protect “designs imprinted in or on fabric—if the design contains a sufficient amount of creative expression.” In fact, the case Unicolors v. H&M, which is currently pending in the U.S. Supreme Court on registration issues, concerns an infringement of intricate geometric patterns that were designed by the pattern-making company Unicolors.

Logos: Copyright law can protect logos. But the key is that logos must have sufficient creativity and originality under copyright law. The Copyright Office has refused to register copyrights in logos when the logos were deemed have simply contained common letters, typography, and geometric shapes without any elaborate or intricate arrangements that would amount to sufficient creativity under copyright law. For example, the Copyright Office has refused to register various logos of famous brands including Adidas’s “3 Bars” logo and Tommy Hilfiger’s “Flag” logo. However, designers can still generally find protections for their brands’ logos under trademark law.

And then there are some design elements that copyright law would not protect. For those design elements, it’s important to remember that other types of intellectual property laws, including trademark and patent law, may provide protections for designers.

Color: Copyright protection does not extend to colors. If a designer wants to protect a signature color or a unique color scheme, copyright is not the avenue. But that doesn’t mean there are no options for protection of the designer’s intellectual property. Trademark protection may be available in these instances.

Cut: The way that design elements are cut and pieced together is not protected by copyright. The U.S. Supreme Court recently addressed this topic in the Star Athletica case, stating that copyright affords “no right to prohibit any person from manufacturing [clothing] of identical shape, cut, and dimensions.” But, again, that doesn’t mean there aren’t other kinds of protections that cover cuts. Design patents may afford protections for this type of design element. (And unlike copyright, a design patent can prevent others from creating fashions that resemble a sketch of the original design.)

Whatever the trend, designers work hard to stay competitive and on top of the spirit of the times by laboring on their collections in time for Fashion Week 2022. It’s clear that the creativity and originality in a designer’s expression is what copyright law was meant to protect.

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