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Aficionados of glossy high-fashion magazines know that for every page of trend-setting design there is an affordable counterpart at the local department store. Expensive couture designs are routinely copied so that inexpensive knockoffs with mid- to low-range price tags can be delivered to the budget-conscious fashionista. This practice has been largely tolerated by the fashion industry as clothing designs, and to some extent accessories, enjoy limited copyright protection under the Copyright Act. A bill pending before Congress could, however, fundamentally alter the legal landscape of the fashion industry by granting full copyright protection to fashion and clothing design. In a new anti-copying campaign led by the Council of Fashion Designers of America, top designers such as Zac Posen, Narcisco Rodriguez and Diane Von Furstenberg are lobbying Congress to grant fashion designs protection under the Copyright Act. The proposed Design Piracy Prohibition Act introduced by Representative Bob Goodlatte, R-Va., last spring, proposes a limited three-year term for fashion designs that commences upon whichever is earlier: the date of publication of the registration or the date the design is first made public. See H.R. 5055. Under the act, the term “fashion design” is defined broadly to include everything from articles of clothing to footwear, headgear, handbags, belts and eyeglass frames. What is unusual about this bill is that it goes against a long line of copyright jurisprudence denying copyright protection to fashion designs because of their inherent utilitarian quality. Under the current U.S. Copyright Act, copyright protection does not extend to the design elements of a useful article when the design cannot be physically or conceptually separated from the useful article. 17 U.S.C. 101. Physical separability simply means that the artistic design of the object can be physically separated from the functional one-a rare case for fashion designs. Conceptual separability means that the artistic part can be conceptualized separated from the functional part. In other words, an artist may not claim copyright ownership of a chair (i.e. four legs, seat and back) but may claim copyright ownership of the original design carved into its wooden backing. Similarly, copyright protection will not extend to the cut and design of a knee-length pleated skirt but it may extend to the flower motif featured on the skirt. The Copyright Act provides that useful articles can be copyrighted if their “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 is called the utilitarian doctrine, and it has dictated much of copyright jurisprudence. The functionality hurdle Indeed, most judges confronted with the issue would agree that items of clothing serve the functional purpose of covering our bodies and therefore are “useful” articles. For instance, the 2d U.S. Circuit Court of Appeals has held in Whimsicality Inc. v. Rubie’s Costume Co.,891 F.2d 452, 455 (2d Cir. 1989), that items of clothing are unlikely to meet the physical or conceptual separability tests because of “the very decorative elements that stand out [as] being intrinsic to the decorative function of the clothing.” Similarly, in Galiano v. Harrah’s Operating Co., 416 F.3d 411 (5th Cir. 2005), the 5th Circuit held that artistic design features on uniforms designed by the plaintiffs could not be conceptually separated from the utilitarian functions of the uniforms. The court refused to provide copyright protection to the Galiano designs even though they included fanciful designs such as chef hats shaped like vegetables, chef uniforms with bib fronts and mandarin collars, and uniform shirts with asymmetric closures, piped mandarin collars and embroidered cuff logos. In contrast to the Galianoand Whimsicalitycases, the landmark case of Kieselstein-Cord v. Accessories by Pearl Inc., 632 F.2d 989 (2d Cir. 1980), illustrates a court’s rare willingness to apply the conceptual-separability test to a fashion design. The 2d Circuit held in Kieselsteinthat the artistic design of a metal belt buckle could be granted copyright protection because it was conceptually separable from the buckle and belt itself. At issue in Kieselsteinwere two metal belt buckles-the “Winchester” and “Vaquero”-that were based on sketches made by the plaintiff. The Vaquero buckle was inspired by Spanish “art nouveau,” whereas the Winchester was inspired by the rifle bearing the same name. Each design featured a sculpted surface with rounded corners and undulating grooves running diagonally across the buckle. The court flatly found that the designs were artistic works of art conceptually separable from the useful function of a belt. To support this contention, the court noted that the buckle wearers used the designs as “ornamentation for parts of the body other than the waist” and therefore could be analogized to jewelry. Although the Kieselsteinholding can be viewed as authority granting copyright to fashion designs, it addresses a different issue in fashion design-the fashion accessory. It is almost impossible to find a case that simply provides copyright protection to a fabric design such as Von Furstenberg’s legendary wrap dress, aside from perhaps the textile design featured on the fabric. See Knitwaves Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir. 1989) (holding that fabric designs are “writings” for purposes of copyright law). Nor would a U.S. court likely find copyright protection in the design of Chanel’s uniquely feminine suits.
INTELLECTUAL PROPERTY

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