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 [1] 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)[2]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.
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. [5] 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.
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Notes
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.
2. http://www.copyright.gov/title17/92chap1.html
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
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11 comments:
But they are not trying to protect the generic "costume." They are trying to protect the art work that they have put on the costume, as your example 4 illustrates. You can remove that art work, and still have a costume, albeit a rather dull and boring costume.
As I understand it, they are not trying to protect the generic costume. They are trying to protect the art that they have put on the costume, as in your example 4. The fact that is it a much more elaborate artwork only makes their case that much stronger.
Suzzane,
Did you see pictures of the costumes? One can copyright fabric designs. A friend, who is head of animation studio, told me that his animators had to design the fabric on the furniture that appears in the movie, because of copyright concerns. The costumes do not have pictures or copyrightable fabric. Case law is not on the side of copyrighting costumes. My picture of a dress is from my closet, not the New Orleans costumes.
I am not a lawyer, but in my humble opinion, their legal advice does not stand on solid ground. "Elaborate" and “time spent “ in creation are not factors in determining if something can be protected with copyright. Look at the dresses at Oscar ceremonies. Some cost several thousand dollars because they take weeks to prepare. They still can't be protected with copyright. If an ornate section of the dress was framed and hung in a gallery, it could be protected. As long as an item has a utility purpose (i.e. it is wearable) it can't be protected.
Daniel,
I have seen the costumes, not just pictures of them. I live in Baton Rouge. I've seen them on Mardi Gras Indians and I've seen them in the state museum here.
I am aware that the picture of the dress is not a Mardi Gras Indian costume. However, the principle is the same. Each costume is designed by the person who wears it. The Indians take a fabric base and add the embellishments -- hundreds of pounds of beads, feathers, etc. -- to make a unique work of art.
They are not copyrighting the fabric base, they are copyrighting that unique work of art. It's not the same situation as knockoffs of commercial items.
And they aren't arguing against someone selling knockoffs of their costumes -- they are arguing against the selling of their image. Art museums and galleries do not allow photography for the same reason.
I think a stronger point is that they choose to wear them at a public event, where it is known that photos will be taken. That could be seen as an implied right, but they aren't arguing against photos being taken, but against photos being sold. As private citizens, they have the right to control over their own image.
It's a complicated issue. I'll be watching -- along with the rest of the state -- to see what happens.
Suzzane,
You are correct, they are trying to copyright photos. Since they have every right to do this, I choose not to write about that fact. The challenge concerns the enforcement, not the legal right to make a claim.
You and I could be at an event and both take beautiful pictures. To the untrained eye one would not be able to know who took which picture. We could both claim copyright to our work and sell copies. But we could not stop the other from selling copies.
In an article from the London Guardian dated March 8, 2011
http://www.guardian.co.uk/film/2011/mar/08/george-lucas-stormtrooper-star-wars-copyright
the case of George Lucas v. Andrew Ainsworth is mentioned. Andrew Ainsworth designed the costumes for the storm troopers in the Star Wars movies. Lucas claims copyright to the costumes. The lower court ruled that since the costumes had a "utilitarian purpose", and were industrial props rather than "works of art," they are not covered by British copyright laws. (American law would agree.) The case is now before the UK Supreme Court.
Suzanne--if you are saying that private citizens have a right to control over images they took (photographed themselves) then yes, but not to the point of this post. If you are saying they have control over images in which they appear, then you are wrong. The photographer owns the copyright unless he chooses to assign it to the subject. If this were not true, portrait photographers would go out of business. Their copyright is often ignored anyway, which is why professional portraits are so expensive. The photographers know that their subjects are going to violate their copyrights, so they charge enough to make up for it.
In terms of changing the law, it seems like a good idea to me. Why shouldn't fashion designers have the sole right to benefit from their designs for a certain period of time?
Marian, Because H.R.5055 was not passes out of committee and the LC Copyright Office didn't give strong suppose is sign that the public is not willing the support the protection of clothing design.
One does not have total control over what one photographs. People are in charge of their own image. That is why photographers ask for a publication release when faces are clearly visible.
No, Marian, I am not wrong. You do not understand the law or my comments.
The photographer cannot use your image for any other commercial purpose without your written permission. He or she cannot sell copies of your photo to other people or use it in advertising. The photographer owns the right to reproduction of that specific image, but you as a private citizen control what uses are made of your image.
That's why a newspaper has to get permission from individuals who are attending events to publish their pictures.
Public persons, such as actors, politicians, etc., have given up that right, but private citizens have not.
The question is whether the Mardi Gras Indians, by appearing in a public parade, have also implicitly given up that right.
It will be very sad if any of them choose not to participate in the future because someone else is profiting by their creativity and labor.
I am not talking about the photos. I am talking about a personal image. See
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter12/12-c.html
All of us have the right to control how our name and our image is used. It's safe to say that none of these photographers obtained a release.
In regard to the Star Wars case, that is a faulty analogy. The Star Troopers costumes were 1)created for hire; 2)created to be used as props; 3)duplicated numerous times; 4)used in mass marketing campaigns. The Mardi Gras Indian costumes are unique (and that means "one-of-a-kind," not merely "unusual). Each one is created by the wearer for his own personal use. They are created to be worn only during that specific Mardi Gras parade. It's really stretching the definition of "useful."
I imagine that they aren't filing a case based on right to their own image because they are appearing in a public event as performers, which may be construed to be implied consent.
Maybe they should be trademarking their costumes.
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