By Danielle Turturo & Francesca Robertson
When you design your own fabric, you can document the source of your idea by filing a copyright registration on your proprietary materials. The only copyright protection currently available for a fashion designer rests in the protection of fabric. Under the U.S. Copyright Act of 1790, Congress is “to promote the progress of science and useful arts, by securing, for a limited time to authors and inventors, the exclusive right to their respective writings and discoveries.” The word “writings” used above has been widely interpreted by the courts to include fabric designs although it does not engulf the actual “dress design”. That is still an unprotected “useful” article. Fabric designs are viewed as more original and put in a family with items such as paintings and other pictorial or graphic materials.
So again, the fabric design affords the designer some protection, but it only extends to the actual fabric itself and not the garment it creates. Accordingly, if you’re one of the various designers who buys fabric from a random manufacturer, and therefore, did not create your own fabric, you may not reap the benefits of the copyright protection. Since the value of any compensation for infringement of a copyrighted fabric pattern would only amount to the value of the fabric as a cloth, and because you did not create the cloth, you wouldn’t be entitled to as much compensation. Whereas, if a designer actually creates his or her own fabric, protection is afforded to them so long as the designs are intricate and complicated. According to U.S. Copyright Law, the fabric must “rise to the level of artistic design”. To determine this, the court imposes the “ordinary viewer test” to judge the design’s originality. This means that if an ordinary viewer can determine that the item in dispute is artistic and original, it is covered by copyright protection. Once this is established, you may have a claim for infringement. To prove copyright infringement, a plaintiff must prove that the defendant had access to the copyrighted fabric and there are substantial similarities to the protected material. Most fabric designs will fail to be protected unless there is strong evidence of substantial copying by the defendant. Thus, and unfortunately for fashion and fabric designers, fabric designs are routinely copied by other fabric designers in creating other patterns.
Filing a Copyright
The Copyright Office continues to draw the line between works of imagination and works of utility. If you feel confident that your work is original and artistic, here are the steps to file a copyright for your fabric design (taken from the Library of Congress): First, and perhaps the most obvious step is to create your unique fabric. Make sure to express your creativity. Next, register your copyright. This process involves three steps: application, payment, and deposit. You can complete an application online or in paper form. There are benefits to either form, although the electronic application has a cheaper fee ($35) as compared to a paper filing ($65). There are also several ways to pay the fee, either by credit/debit card, electronic funds transfer, or a Copyright Office deposit account. After that, you need to deposit your work. For this, you need to include nonreturnable copies (usually, one for unpublished and two for published). Then, send the package to the Library of Congress Copyright Office, located at:
101 Independence Avenue, SE.
Washington, D.C. 20559 6000.
What happens next?
After the Copyright Office receives your package, your registration becomes effective on that day. They receive about 2,400 submissions each business day. Then, their financial department processes your payment. They examine your application and deposit and make sure they’re acceptable and meet the requirements of Copyright law and regulations. Your registration is assigned a number and a certificate of registration is issued. You’ll receive that certificate in the mail about 4 months after you submit your package. Catalogers create an online, searchable public record of your registration.
If you have further questions, feel free to contact the Copyright Office:
For technical inquiries:
Copyright Technology Office
For registration-related inquiries:
Copyright Public Information Office