Can Clothing be Protected from Copying?
Revelers in the New Orleans Mardi Gras make elaborate Indian costumes that could cost more than $1000 to make. They want some of the profits when photos are sold and end up in books and on posters. On February 8, 2011 an AP wire story by Mary Foster  appeared in many newspapers about the costume creators’ desire to protect their work with copyright. The article has pictures that I can’t reproduce here because AP holds the copyright, Click this link to see one picture. Rather than deal with the factual errors in the article, I want to discuss the copyright issues.
U.S. Copyright Law (Title 17 section 101)includes protection of art. Clothes and costumes can not be included in the definition of art.
“Pictorial, graphic, and sculptural works” include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work 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.
http://today.msnbc.msn.com/id/13819062/ns/today-today_fashion_and_beauty) Objects that are “useful” can not be protected with copyright. Clothing, furniture, automobiles can not be protected; however, they can contain portions that are protected. Art work on a”useful article” is protected. For example a carving on the frame of a chair, picture on a shirt, or the figurine on a car’s hood can be protected. The drawings to make a car or dress can be protected as works of art. The photograph or sketch of a dress or automobile may be protected, but that protection applied to the artistic aspect of the picture. It does not give the artist exclusive rights to make a dress or automobile.  To the left is an example of a dress with artwork.
On March 30, 2006 H.R.5055 was introduced to provide copyright protection for fashion design. This amendment of Title 17 (copyright code) would allow fashion designers three years of protection. In the amendment is a definition of apparel that includes any kind of garments, handbags, belts, and frames for eyeglasses. On July 27, 2006 the United States Copyright Office issued a statement concerning this proposed legislation.  They stated that they do not have enough information to determine if the fashion industry and designed have suffered from the lack of copyright protection. They could not make a judgment as to whether this bill would be desirable. They did offer some amendments to improve the bill.
Patent protection for fashion designs would not work for several reasons. The application procedure takes 18 months and only about half get approved. Even if the designers could prove that clothing was a new invention, the value after 18 months would be diminished. If granted a patent and the designer found someone infringing on their rights, they could sue, but fewer than 50% of the suits succeed and that would eat more time. Since the useful lifetime of high fashion is one season, designers rarely seek patent protection.
If a trademark such as the double G for Gucci is copied, the offending copier can be suit for trademark violation. See Magdo’s article, section “Trade symbols – trademark and trade dress” for a fuller discussion. Trademarks registration can protect a symbol or mark that clearly identifies the creator. The symbol is artwork that has no utilitarian purpose. If the symbol was removed from the item, it could still be used. This protects companies from pirating and sale of counterfeit goods.
As long as a work is in a tangible form, it can be protected. If a costume could not be worn and it was just on display it is a type of sculpture. Barbie Dolls are protected by copyright. They have defended their copyright on several occasions. In 2008 Mattel was awarded $100 million from MGM, the maker of the Bratz dolls. Barbie’s clothing may be protected because it may be considered art, not fashion.
The question remains for the Mardi Gras Indian costumes as to whether they are art of fashion. Makers don’t care about individuals taking pictures for their personal use; the care about sales of photographs by professional photographers. Even though the Indians have legal advice, I still think that copyright protection is not certain. One lawyer suggests that they have some sort of notice of a copyright claim. If they want protection trademarks would work better than copyrights. Just as Gucci, Chanel, and other companies protect their products with unique symbols, the Indians costumes could have some sort of art or mark that could be protected. That way if someone published a picture with this mark visible, the owner could sue to protect his rights. Note this is not legal advice. It is based on the above examination of what is fashion and what is art.
1. “Mardi Gras costumes inspire photographers - and a copyright claim” / Mary Foster. Source include: Washington Post’s web site: http://www.washingtonpost.com/wp-dyn/content/article/2011/02/07/AR2011020706635.html NPR’s site: http://www.npr.org/templates/story/story.php?storyId=133571113.
3. For more information see: “Protecting works of fashion from design piracy” / by Christine Magdo http://leda.law.harvard.edu/leda/data/36/MAGDO.html from documents in the Harvard Law School Library [2000?]
4. See: Copyright Registration for Works of the Visual Arts, Circular 40 Copyright Office, 2010. http://www.copyright.gov/circs/circ40.pdf
5. For the full text see: http://www.copyright.gov/docs/regstat072706.html