By Maysa Razavi
This guide is intended for designers who are interested in learning which pieces of their work are protected by copyrights and how to register these copyrights.
What is Copyrightable?
Copyright protection is available for original expressions fixed in a tangible form. It is not available for useful articles such as apparel; however, it will protect the pictorial, graphic, or sculptural features, if they can be identified as existing independently of the apparel which embodies it. Federal copyrights will not be issued for designs that are commonplace, such as familiar symbols, shapes, patterns, or configurations that are standard or ordinary. Copyrights do not afford protection for facts, systems, methods, operation, ideas, names of products or services, names of businesses, organizations or groups, pseudonyms of individuals, titles, slogans, short advertising expressions, or catchphrases.
Eligibility of Fashion Elements for Copyright Protection:
1. Clothing Design: The form and design in clothing are considered to be useful in a way that they are not a separable expression on its own, and, therefore, clothing designs are not copyrightable.
This Alexander McQueen® dress is not copyrightable:
This Chanel® classic flap bag is not copyrightable:
These Manolo Blahnik® shoes are not copyrightable:
2. Clothing Design Drawings: The sketches used to make the designs are copyrightable as a pictorial work of the designer.
This sketch by Giorgio Armani is copyrightable:
3. Advertising: Ad Campaigns: Whether in magazines, on billboards, or on television, most ads are copyrightable as photographs and motion pictures. Slogans, taglines, and other short phrases are not copyrightable, but may be eligible for trademark protection.
This Bulgari® magazine advertisement is copyrightable:
4. Patterns and Pictures on Clothing: As long as the image is original and easily separable from the usefulness of the clothing, the image will be copyrightable.
This image on this Affliction® T-shirt is copyrightable:
5. Jewelry: Jewelry is considered ornamental and non-useful. It is always copyrightable as long as the piece has some original, creative expression.
6. Watches: Watches differ from jewelry, because they are considered useful objects. Since the utilitarian aspect of a watch is not separable, it is not copyrightable.
7. Labels: The care instructions are not protectable by copyright. The language is usually too short and unoriginal (standard language) to protect.
The care instructions on the back of this Asics® label are uncopyrightable:
8. Belt Buckles: As long as the artistic expression is separable from utility of the belt buckle, it will be protected under copyright.
These belt buckles by Barry Kieselstein-Cord are copyrightable:
9. Mannequins: The design of mannequins is not conceptually separable from the design elements, which bars them from copyright protection.
This Carol Barhart® mannequin form is not copyrightable:
What Rights Does a Copyright Give Me?
The copyright owner has the exclusive right to make copies, to prepare derivative works, to sell or distribute copies, and to display the work publically.
What Do I Have To Do To Get Copyright Protection?
To register a copyright, submit a completed application, non-refundable filing fee, and two nonreturnable copies of the work. Application forms may be obtained from the Copyright Office website located at www.copyright.gov. Applications may be submitted online or download and complete a Form CO. This form includes a barcode and enables the Copyright Office to process your application faster. Online registration requires a $35 filing fee, and Form CO requires a $50 filing fee. You can also contact the Copyright Office to request paper versions of the forms which they will mail to you.
How Long Does Copyright Protection Last?
Copyright protection begins at the time the work is created, whether or not it is published or registered. Protection extends until 70 years after the death of the author.
When Should I Register a Copyright?
A copyright application should be filed as soon as the work is fixed in a tangible form. A fixed tangible form can be a photograph, sketch, or writing. Timely registration provides a broader range of remedies if the work is infringed.
Why Should I Register a Copyright?
Registering a copyright provides a public record of the copyright claim. Also, registration is a prerequisite for bringing an infringement suit.
What Is The Difference Between Copyright Protection and Other Types of Intellectual Property Rights?
Copyrights: Copyrights protect the original expression of an idea in a fixed medium in some physical tangible form. It only requires a modicum of originality and a minimal level of creativity. However, the expression protected cannot be deemed useful with a utilitarian aspect. Copyright generally lasts for the life of the author plus 70 years. Copyrights protection will occur upon creation of the work, but you must register the work to bring a copyright infringement case in court. This protection includes barring others from reproducing the copyright work and making derivative works based of the copyrighted work. Registration costs are fairly low.
Patents: Utility patents can protect the usefulness of a new invention and last 20 years. A design patent protects only the ornamental appearance of an article, not its structure or utilitarian features. Design patents last only 14 years. Patents protect designs that are “substantially the same” as the patented design from the point of view of an ordinary observer. Patents must be registered to get protection. The registration process is costly and expensive.
These Stuart Weitzman® Patio shoes have a design patent:
Trade Dress: Trade dress protects visual appearance of a product or its packaging as long as it signifies the source of the product to consumers. The design elements protected by trade dress cannot be functional and must be distinctive to that product, which is an added standard of proof needed for trade dress over copyright. Though inexpensive, registration is not required to get trade dress protection as long as the packing or appearance is being used by the brand owner in a commercial setting. Trade dress protection can last forever.
This Hermes® Birkin Bag has a registered trade dress:
Where Can I Obtain More Information?
Library of Congress
Copyright Office –COPUBS
101 Independence Avenue SE
Washington, DC 20559-6304