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March 27, 2009. Content has not been altered.

Legal Landscape

Can I Copyright My Clothing Designs

Jeff Neuburger, July 13, 2007

You can’t copyright your clothing designs themselves, but you can copyright certain of the design elements of your clothing. The distinction between the clothing itself and such design elements has to do with some basic principles of copyright law.

Useful articles

Copyright extends to original, non-useful works of authorship, fixed in a tangible medium of expression. “Non-useful” means that you cannot obtain a copyright on a work that has a functional purpose. The so-called “useful article” doctrine is a barrier to copyrighting clothing designs, because clothing is considered to be “inherently functional.”

But certain elements of clothing designs can be copyrighted. The design embossed or imprinted on textiles or fabrics—as opposed to the style, shape, or pattern of the finished garment—may be entitled to copyright protection. This means that designs or elements of a fashion may be copyrightable to the extent that the element can be conceptually or physically separated from the utilitarian nature of the article.

The logo, not the t-shirt

Here’s a simple example: a logo applied to an item of clothing can receive copyright protection as a work of visual art. Thus, if you are marketing t-shirts screen printed with your original artwork, you can copyright the artwork, but not the design of the t-shirt itself. That is true even if the t-shirt is your unique, original design. You can also obtain copyright protection for a fabric design if it meets the requirement of originality. Copyright can extend to other “separable aesthetic and non-utilitarian aspects” of clothing or fabric. For example, copyright protection has been given to an ornate belt buckle design.

Should I copyright my logos and fabric designs?

First, understand that you have a protectible copyright in your designs at the moment of creation, that is, when your design is “fixed in a tangible medium of expression,” such as a drawing on paper, or a design saved to a computer file. You may wish to obtain copyright registrations for your designs, however, in order to gain certain advantages under federal law. These include:

* Satisfying the requirement for bringing an infringement suit for a work originating in the U.S. (with certain exceptions).

* Enhancing your legal position in an infringement lawsuit, such as qualifying for an award of statutory damages (damages payable even if actual damages can’t be proved); creating a legally advantageous “presumption of validity”; qualifying for a shift in payment of attorney fees to the infringer.

* Making a publicly searchable record of your copyright ownership, which may discourage infringement and encourage licensing of your designs by third parties.

* Adding value to your business, in the form of identifiable, verifiable assets.

How to register

A completed Form VA, payment of the filing fee (currently $45) and “identifying material” must be submitted to the U.S. Copyright Office for review. The requirements for a deposit of “identifying material” are available in Copyright Office Circular 40a.

Keep your eye on this space

At the urging of the fashion design industry concerned about low-cost “knock-offs” of high-end fashion designs, Congress is considering the enactment of legislation that would extend copyright protection to fashion designs, with a limited three-year period of protection. H.R. 2033, the “Design Piracy Protection Act.” You can read about the proposed legislation in this Congressional Report. Similar legislation has failed in the past, however.

Posted by Jeff Neuburger on July 13, 2007

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