|Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996 (2d Cir. 1995) (emphasis added)|
I. The Finding of Copyright Infringement
As " 'useful article[s]' ... having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information," 17 U.S.C. Sec. 101, clothes are not copyrightable. Whimsicality, Inc. v. Rubie's Costume Co., 891 F.2d 452, 455 (2d Cir.1989). In contrast, fabric designs, such as the artwork on Knitwaves' sweaters, are considered "writings" for purposes of copyright law and are accordingly protectible. Folio Impressions, Inc. v. Byer California, 937 F.2d 759, 763 (2d Cir.1991); see also Soptra Fabrics Corp. v. Stafford Knitting Mills, Inc., 490 F.2d 1092 (2d Cir.1974); Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir.1960) (L. Hand, J.).
|Folio Impressions, Inc. v. Byer Cal., 937 F.2d 759 (2d Cir. 1991) (emphasis added)|
|Among those forms of "writings" now recognized as entitled to copyright protection are fabric designs, which are the subject matter of this appeal. See, e.g., Millworth Converting Corp. v. Slifka, 276 F.2d 443 (2d Cir.1960) (Friendly, J.); Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir.1960) (L. Hand, J.). Fabric designs are distinguished from "dress designs," which as useful articles under 17 U.S.C. Sec. 101, are not typically copyrightable. See Whimsicality, Inc. v. Rubie's Costume Co., 891 F.2d 452, 455 (2d Cir.1989); 1 Nimmer on Copyright, Sec. 2.08(H) (1990).|