A comment to yesterday's posting raised the issue of protection for clothing. This was an issue that arose when I was a Policy Planning Advisor to the Register of Copyrights in the context of costumes. Eventually, the Office issued a Policy Decision, 56 Federal Register 56530 (Nov. 5, 1991) which took the position that full body costumes were useful articles. This is what I call the "Scottish Kilt" theory of costume utility. The design of useful articles must meet the separability test, in addition to being original. If the pictorial graphic, and sculptural work is not the design of a useful article, it need only meet the originality standard. (What the proper test(s) are for separability is a separate and extraordinarily complicated, controversial topic well beyond any blog).
Some courts have followed the Office's view, like Entertainment Research Group, Inc. v. Genesis Creative Group, Inc., 122 F.3d 1211 (9th Cir. 1997). Recently, in Boyd's Collection, Ltd. v. Bearington Collection, Inc., 360 F. Supp.2d 655, 661 (M.D. Pa. 2005), the court held that clothing for a Teddy Bear was not a useful article, because "it replicates the form but not the function of clothing on a person."
My view, which is a distinctly minority view (and maybe is solely my view), is that clothes are not useful articles within the meaning of the statute. Rugs, for example, may provide warmth against a cold winter floor, but as with other two-dimensional works applied to useful articles, the pictorial or graphical elements placed on the rug or in the rug do not function as the design of a useful article, and thus the separability test is not applied. In a Second Circuit case, Langman Fabrics v. Graf Californiawear, Inc., 160 f.3d 106 (2d Cir. 1998), amended 169 F.3d 782 (2d Cir. 1998), a case involving the notice requirement, the court sided with me and against the Office and held that "the question is not whether the design is useful, but whether the fabric on which the design is printed is useful." This properly distinguishes between the intellectual property and the copy in which it is embodied.
Clearly, the non-design elements of a rug (the raw fabric) are useful, but the design itself isn't. The design is only the design of the rug in a colloquial, non-legal sense. The same is true of clothing. The separability test should only be applied to the design of three-dimensional works. Clothing design is usually two dimensional, but even if three-dimensional I do not see how it serves a useful purpose within the meaning of the Act. Instead, its purpose is merely to portray its appearance, and thus it falls outside the definition of a useful article.
I expect my friends in the Copyright Office will disagree and I look forward to any comments they may have.
Professor, your use of the word "design" puzzles me. I can understand using the word "design" to refer to the pattern woven into or printed on a rug. But when applied to clothing, I feel that the word "design" refers to things like shape and length of sleeves, whether the garment has a lining, how the "engineers" of the garment dealt with the various trade-offs involving weight, durability, price, insulating ability, and so on. The "design" of a hat refers to whether it has a brim, a band, and feathers or not. And so on. All these are related to the "usefulness" of the garment, at least as adornment.
ReplyDeleteA two-dimensional decorative motif printed on, or embroidered, needlepointed, or woven into, an article of clothing, or stitched onto it in the form of beadwork, might be copyrightable in itself. But how is this not a "separation" of the motif from the "design" of the garment ?
Do you think that things like the number of slashes in a 17th-century style slashed sleeve, or the shape or positioning of a seam, or the width of a cuff, or the precise shape of a cloak's hood or collar, should be copyrightable ? Wouldn't this approach burden the courts with trifles ? Wouldn't it be easier on all of us if we simply keep as publici juris all matters of cut and shape of clothing ?
Or have I misunderstood your post ?
Perhaps the strongest argument in favor of applying a narrow view on separability, especially with regard to clothing, is the concerns over market foreclosure of competing useful articles. There is considerable similarity in the aesthetics of clothes and costumes between competitors and if infringement can be proven through substantial similarity and access, I think reasonable concern should exist that a broad separability standard would hinder competition through litigation costs.
ReplyDeleteI did a poor job of fleshing out a few of my conclusions. The first conclusion is that the separability test doesn't apply to two-dimensional designs like those in rugs or imprinted on clothes. This is because such designs are not really the design of a useful article; they are merely superimposed on a useful article.
ReplyDeleteThis gets us to Timothy's more question about three-dimesnional desings, like the shape and length of sleeves, etc.
My point here is different. I don't view such designs as falling within the definition of "useful article" in Section 101: "A useful article' is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a 'useful article'."
For me, clothing is designed to portray its appearance, and thus it falls outside the definition
Prof. Patry--
ReplyDeleteFor me, clothing is designed to portray its appearance, and thus it falls outside the definition
That doesn't seem very realistic. As Timothy correctly notes, a lot of the design of clothing is useful. People don't wear, and people don't design, shorts in the summer to portray the appearance of shorts. They wear them because the design is cooler in hot weather.
Even in extreme examples, there will always be functional considerations in clothing design that are inseperable from the design itself, including at a minimum, the amount of cloth involved to produce it. If clothiers want protection, it's better for them to seek the patent route.
Thanks for weighing in on this issue, Professor. We are really proud of the Boyds v. Bearington decision here.
ReplyDeleteI don't think we need the functionality doctrine w/r/t clothing either. In most cases, un-originality/public domain theories would have the same effect and prohibit market foreclosure.
If a designer really does come up with an original design, it’s wrongheaded, in my mind, to say that the design is unprotectible because it provides warmth and protects modesty.
One thing I would like to see you weigh in on, Professor, is the multiplicity of infringement tests.
In the Second Circuit, you've got, in addition to the Extrinsic and the Intrinsic tests, a "lay observer" standard and a "more discerning observer" standard, which, in my reading, are awfully close, but ostensibly require a jury to do different things.
Moreover, I can’t figure out, as a practical matter, when each standard should be used. A Defendant will always say it's the more discerning test, because the work contains material from the “public domain.” In point of fact a work will always contain material from the public domain, so it appears that the more discerning observer has swallowed the lay observer.
Then, you’ve got the mandate, in some but not all circuits to “filter” out unprotectible elements, but not a lot of guidance on how that filtering is to work.
Other circuits mention neither the more discerning observer nor filtering.
Tom
Copyright was originally for "books". The farther something is from being a "book", the farther it should be from being subject-matter of copyright.
ReplyDeleteA two-dimensional graphical motif is subject matter of copyright, because it is an intangible work of the mind that can be printed in a book or embroidered onto a shirt. It exists at least hypothetically apart from any medium in which it be fixed. (Is this the "separability" that the professor refers to ?)
Wraps-in-themselves are far from being "books". The Copyright Office's approach has the advantage of short-circuiting what would otherwise be an enormous bunch of absurd copyright claims in clothing. Whether classifying wraps as "useful" is the best way to do this is another question. But the clothes I wear certainly seem "useful" to me. It doesn't seem to be too much of a logical stretch to short-circuit copyright claims in clothing-in-itself in this way.
I don't know what to say about Timothy's "books" paradigm for copyright, other than to say that the law doesn't feel the same way, and I don't really consider it a helpful way to think about what should and shouldn't be protected.
ReplyDeleteStatues, movies, teddy bears, buildings, sound recordindg, etc. are nothing like books, but enjoy preotection and don't flood the courts.
Completely as a policy matter, I don't see any reason to prefer one form of creativity to another or for the media it's in.
That being said, I think there can be functional and non-functinal aspects about clothing, but the Courts and the Copyright Office have said that clothing is all functional.
Then, you've got the IMO absurd result of saying a costume is functional, but a stuffed animal of the same design is not.
And what about "virtual" costumes? After all, Marvel recently filed suit against the operator of City of Heroes, one of the most popular "MMOs" (massive multiplayer online role playing game). The theory was that players were violating Marvel's copyrights (and TMs) by "dressing up" as Marvel characters in the virtual game world.
ReplyDeleteDoes everyone agree that "costumes" in this context are not useful articles? Anyone care to explain why this should be so? (While online persona may not need clothing for warmth, they certainly do for modesty - witness the disputes over "hacks" that render in-game characters nude!).
Another wrote:
ReplyDeleteDon't know what to say about Timothy's "books" paradigm for copyright, other than to say that the law doesn't feel the same way.
That only means that it's high time for the law to start feeling the same way.
Copyright in buildings and boat-hulls should be eliminated. Obliterated. Erased. Trashed. Made away with. Deep-sixed. Scrapped. Copyright in clothing-as-clothing should be resisted.
That the clothing industry is competitive is ordinarily thought to be a good thing. If competition in that market has taken a turn that will in the end work woe to the workers and wearers of weeds (something that has yet to be shown,) still it does not follow that ninety-five years of anti-competitive lockout by means of copyright is the best solution, rather than design-patents, or tariffs, or some other form of trade-regulation.
Re: City of Heros. I think the issue is similar to that in the Boyds case. In City of heros, the "clothing" mimicks the form and not the function of real clothes.
ReplyDeleteI think the real issue there is whether COH can be held liable for basically providing a tool box that enables users to infringe marvel's copyrights.
Re: Timothy's comments. Seeing past my need to have Copyrights be robust in order to make a living, I'd like to see creativity protected as broadly as possible.
As a caveat to that, I'd like to see very broad fair use rights as well as shorter terms of protection.
In sum, I'd like copyright to be wider and less deep, if that makes sense.
Fred:
ReplyDeleteRe City of Heroes, in my view what the characters wear are definitely not the design of useful articles even under the Copyright Office's Policy Decision. That decision, which I unsuccessfully fought against during its formulation, was based on the idea that full-body costumes clothe ones nakedness or protected one's privates from the weather. Neither is true online.
The Costume Policy Decision is an unfortunate relic of an unfortunate period.
I have another observation to make regarding the copyrightability of clothing design: barring the example of extremely outre outfits cut to fit alien lifeforms, there literally is "nothing new under the sun" with respect to clothing shapes. A sleeve must fit the arm. It may be long or short. But every variation on that theme has already been done, in spades. Coming up with a truly creative design for a garment is like getting a patent on a recipe for a peanut-butter sandwich: possible, but unlikely.
ReplyDeleteFurthermore, the garment shapes themselves are influenced by the shape of the body they must cover. I can make a sleeve with a certain fullness, but how full it will look will depend on how thick are the arms of the wearer. What aspect of that fullness do you apply copyright to? As manufactured or as worn? If the former, then you keep someone from making a garment with a different appearance *when worn* because the physical size of the garment piece is the same. If the latter, then you keep someone from making a garment that would look different when worn, but happens to be intended for a person of a different size. It is completely insane.
Lastly, I'd argue that it would violate freedom of expression. Read "The Language of Clothes" sometime.