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This information is taken directly from the court opinion. It is not taken out of context nor is it altered.

From Express v Fetish Group, 424 F. Supp. 2d 1211 (C.D. Cal 2006) [pages 1224-1225]: As a general rule, items of clothing are not entitled to copyright protection. Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir. 1995) (citing Whimsicality, Inc. v. Rubie's Costume Co., 891 F.2d 452, 455 (2d Cir. 1989)). This is because items of clothing are generally considered useful articles, and useful articles are not entitled to protection under the Copyright Act. Morris v. Buffalo Chips Bootery, Inc., 160 F. Supp. 2d 718, 720 (S.D.N.Y. 2001) (noting that "items of clothing are, as a general rule, uncopyrightable useful articles'"). The design of a useful article, however, is entitled to protection "if, and only to the extent that, such 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. Thus, courts have held that the patterns or other artistic features imprinted onto a fabric or that appear repeatedly throughout the dress fabric may be entitled to copyright protection "if they can be identified separately from, and are capable of existing independently of, the utilitarian purpose of the [clothing]." Entm't Research Corp., 122 F.3d at 1221; cf. Folio Impressions, Inc. v. Byer Cal., 937 F.2d 759, 762-65 (2d Cir. 1992) (protecting fabric designs as "writings"); Eve of Milady v. Impression Bridal, Inc. ("Eve of Milady I"), 957 F. Supp. 484, 489 (S.D.N.Y. 1997) (same). Stated otherwise, the pattern or design is copyrightable "only to the extent that its artistic qualities can be separated from the utilitarian nature of the garment." Galiano v. Harrah's Operating Co., 416 F.3d 411, 419 (5th Cir. 2005). In this case, the utilitarian functions of the GH268 Tunic cannot be protected by copyright. However, because the lace and embroidery accents are totally irrelevant to the utilitarian functions of the tunic, those aspects of the GH268 Tunic are copyrightable. Express argues that because the "placement," "arrangement" and "scalloping" of the lace trim cannot exist separately from the camisole itself, these aspects of the GH268 Tunic cannot be accorded copyright protection. Defendant's understanding of which elements of clothing can be copyrighted is too narrow. The point is that the placement and arrangement of the lace do not relate to the [page 1225] functionality of the GH268 Tunic. This view is confirmed by the district court in Eve of Milady v. Impression Bridal, Inc. ("Eve of Milady II"), 986 F. Supp. 158 (S.D.N.Y. 1997), which held that the plaintiff in that case could not only claim a copyright in the actual design of the lace, but could also claim a copyright in "the way that lace is placed and arranged on the dresses." Id. at 161. Thus, the placement, arrangement, and look of the lace trim on the GH268 Tunic are copyrightable. Whether the actual scalloping of the lace trim is copyrightable (Express argues it is not because it is the least wasteful way of cutting the lace trim) is irrelevant -- the point is that as a whole the look of the GH268 Tunic, as separated from its utilitarian elements, is copyrightable.