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.