Fashion Design: Where Unprotected and Protected Content Overlap


It has recently been argued that articles of clothing cannot be protected by copyright law. While this isn’t a new argument, and I concede to being aware that something to that extent is true, it didn’t sit right with me that the law would prevent concepts like “green shorts” from being copyrighted, but not protect unique items from the intellectual property of artists. How could lack of legal protection in one area undermine explicit legal protection in another?

I don’t like to argue with uncertainty, so I decided to do some research and share my findings.

What is Intellectual Property? What is Copyright?

I’ve broken down the legal jargon surrounding IP and creative copyright law in a previous post. If you’re fuzzy on the definition and particulars of either concept, give the first few paragraphs a read, or the whole article if you have time. That should clear things up a bit.

The Vessel Hull Protection Act

It’s true that there is almost no copyright law in place to specifically protect fashion design. Almost. Congress came EXTREMELY close to enacting legislation that protected all “designs of useful articles” under the Copyright Act of 1976; the act which, in its current iteration, protects the intellectual property of visual, literary, musical, and performance artists.

In the end, fashion, as well as most other forms of industrial design, didn’t make the cut, in spite of the fact that what is largely perceived as a balanced and reasonable amendment to include it has already been written (H.R. 5055). Only vessel (boat) hull designs made it in, on the grounds that the method for reproducing hull designs merely replicated the shape without the structural integrity of the original design, thereby creating a safety hazard.

But who cares about boat hulls. Let’s get back to that “almost.”

Design Protection Available Under Existing Law

Under law, items of fashion design are considered “useful articles,” which is defined as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” In layman’s terms, it’s something that is made to be used, like furniture, eating utensils, and, of course, clothing.

These “useful articles” are protected by copyright law “only 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.” The House report accompanying the bill clarified that the test of separability could be either physical or conceptual, the purpose being “to draw as clear a line as possible between copyrightable works of applied art and uncopyrighted works of industrial design.”

What does all that mean? It means any visual or physical details that aren’t necessary to the function, or “utility,” of the item are considered independently from the item itself. The graphic portion of a graphic tee presents the easiest example. You can’t just iron a picture of Hello Kitty onto a shirt and sell it. The shirt by itself isn’t copyrightable, but Hello Kitty is copyrighted to Sanrio, so you have to purchase a licensing agreement from them in order to manufacture and sell any products with her likeness. Similarly, you can’t put the Louis Vuitton pattern on a tote bag and sell that. Even if the tote is nothing like any bag LV has for sale, the pattern is copyrightable, and that copyright belongs to Louis Vuitton.

To put it in context, this is what makes the difference between a generic cat-like hat, and a hat with the same colors, horns, and face as the copyrighted character design for Nepeta from Homestuck. The cut or materials of the hat itself can’t be called into question, but the “pictorial, graphic, and sculptural” details as mentioned above can.

Fair Use, Impact, and Sustainability

I’ve discussed the basics of Fair Use in my previous article on copyright law, and mentioned it again in a slightly different context in response to direct plagiarism, but it’s always relevant. The protection it offers to those who do not hold the copyrights to a piece of intellectual property is limited by the intent of the derivative work and the impact it has on the value and market of the source material.

Intent largely pertains to whether or not the purpose of the work is commercial, which is frowned upon without permission, or non-commercial, which would indicate an educational or charitable nature. Impact refers to the potential to directly affect the source material and its copyright holder. To quote the relevant bits of a rambling post on my side blog:

If you’re selling drawings or hand-crafted items based off characters in a cartoon produced by a big time studio like Nickelodeon, it’ll have little to no impact on the source. One or two sewing machine savvy individuals pose no threat to the image of, or profits on, the real deal. It still doesn’t technically make it LEGAL, it just isn’t likely going to matter to anyone important, and satisfies the needs of the fanbase to acquire unique items related to the things they like.

But when the source is another independent creator, the impact is HUGE. Assumptions will and can be made as to whether or not the vendor is representative of the source. Their behavior and craftsmanship can and will reflect on people’s impression of the original content. In certain cases, it even represents potential loss of income, when people sell products that are similar to those being sold in an official capacity, or that will be sold and are still under development.

I also mentioned, but didn’t really get into, the concept of the sustainability, or presence of identifiable and unique characteristics, of the original content within a derivative work. It’s not a clear cut line, but there are circumstances in which the derivative work is so far removed from the original that it is simply no longer similar enough to legally be considered derivative. This dovetails beautifully into the test of separability with regards to the protection of “useful articles” under existing copyright law.

Grey Areas and Intentional Vagueness

The lack of crystal clear distinction between what is and is not acceptable under the law comes with both positives and negatives. On the upside, it prevents large companies with vast legal resources from monopolizing concepts, allowing for much greater flexibility for creation and innovation. On the downside, it makes it difficult to make a case for infringement short of an official court ruling, especially when small companies and individuals are involved.

In conclusion…

No one really wants to resort to legal action. It’s costly, disruptive, and often damaging to all parties involved. Creators of popular content have to take a stand and draw the line as to what is and isn’t okay, or their rights to their own intellectual property will be trampled on indiscriminately. If you’re wise enough to realize there are possible legal loopholes that will let you get away with producing and selling something based off property that isn’t yours, you’re wise enough to know that what you’re doing is legally questionable, and at the very least, incredibly disrespectful.

The saying “it’s easier to beg for forgiveness than ask for permission” is rubbish if you ask me. Asking first is always the right thing to do. If they don’t respond, keep asking. Look for information that might shed light on the proper people to ask, or existing policy on the subject. Acting without permission and getting caught for it later not only makes your business practices seem shady and dishonest, but makes the injured party seem cruel and overbearing as well. Neither party emerges unscathed from a situation that could have been avoided with persistence.

This isn’t to say the copyright holder is always without fault, and the ambiguous nature of the laws in place, as previously mentioned, aren’t always particularly helpful. It’s crucial as a business, however, to keep integrity and legality in mind when these kinds of decisions are made, not just the desires of potential customers, or the need to remain relevant in a constantly evolving market.

Disclaimer and Sources

Remember, I am not a lawyer. The information above has been gathered and interpreted without legal consultation, and should not be considered as such. These are the resources I used for my research, if you would like to read and interpret them yourselves: