The first Copyright Act was promptly made law in 1790, just over one year following ratification (by quill pen) of the Constitution that enabled Congress to do so. It has been revised comprehensively only four times since. The current version, which became effective in 1978, is charmingly obsolescent despite heavily promoted, patchwork updates. That has left much of the modernization to the scholarship, skill and, on occasion, predilections and fancies of a federal judiciary tasked with applying the current Copyright Act to things unknown when it was enacted, such as smartphones, the Internet, and something my 12-year-old says goes by the name of TikTok.
Such was the perambulating pace of change that, when the first modern case of whether and to what extent fashion could be protected by copyright made its way to a federal appellate court, the opinion started with, “This case is on a razor’s edge of copyright law.” Kieselstein-Cord v. Accessories by Pearl, 632 F.2d 989 (2d Cir. 1980). The question presented to the U.S. Court of Appeals for the Second Circuit by predecessors at my law firm on behalf of the plaintiff, the jeweler Barry Kieselstein-Cord, was whether the ornamental elements of the buckles on two styles from his line of luxury belts were protectable by copyright. In copyright law terms, the issue was whether those decorative elements could be separated conceptually from the utilitarian elements, even if embodied together in a single, molded piece of precious metal. The court held that it could. “We see in appellant’s belt buckles conceptually separable sculptural elements, as apparently have the buckles’ wearers who have used them as ornamentation for parts of the body other than the waist.” 632 F.2d at 993.