Articles of clothing are considered useful articles, but designs on clothing can be copyrighted to the extent that they contain pictorial, graphic or sculptural features that can be separated from the utilitarian aspects of the clothing. Other objects of apparel, such as animal-nose masks and animal-foot slippers, can also be copyrighted. See Masquerade Novelty Inc. v. Unique Indus., 912 F.2d 663 (3rd Cir. 1990) (animal nose masks); Animal Fair Inc. v. Amfesco Indus., 620 F. Supp 175 (D. Minn. 1995) (animal-foot slippers).
However, practitioners may be surprised to learn that the combined articles of clothing that form a costume (e.g., the shirt, pants, mask and slippers) may not be copyrightable because the costume is a useful article whose artistic expression cannot be separated from the utilitarian function of masquerading as some type of object, such as a spider or bee. See Whimsicality Inc. v. Battat, 1998 WL 817843 (S.D.N.Y. Nov. 23, 1998); Whimsicality Inc. v. Rubie’s Costumes Co. (I – V), infra. Recent case law thus appears to have made a distinction between copyright protection for (a) the artistic embellishments used on clothing and (b) the artistic impression embodied in a costume.
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