I am a fashion designer and am looking to make some extra money by drawing trendy clothes and styles and selling my drawings to companies. When posting my work for all to see, I worry that some of my ideas might be taken. Is there any way to protect my work? Is patenting my drawings through the U.S. Patent Office my only option for protection? I heard if you mailed your work to yourself, this could by law, protect your tangible ideas. Is this true?
Clothing designs slip through the cracks in copyright, trademark, and design patent law.
The rule is that clothing designs are NOT copyrightable because copyright does not attach to useful articles.
A leading copyright scholar breaks the subject of fashion design copyright protection into two categories: (1) fabric design and (2) dress design. Fabric designs are patterns or artistic features imprinted onto a fabric or that appear repeatedly throughout the fabric. Because one can generally separate the artistic elements of this type of design from the utility of the wearable garment, fabric designs ARE generally entitled to copyright protection. Many clothing manufacturers register the copyright in the designs affixed to the fabric of their clothes – and then sue to enforce that copyright when the design is replicated on knock off versions of the clothes. On the other hand, dress designs, which graphically set forth the shape, style, cut, and dimensions for converting fabric into a finished dress or other clothing garment, generally do not have artistic elements that can be separated from the utilitarian use of the garment, and therefore do NOT qualify for copyright protection. See Galiano v. Harrah's Operating Co., 416 F. 3d 411 (5th Cir. 2005) [ http://j.mp/cyHIQT ].
So … designs ON fabric are protectable under copyright law. In addition, dress design elements “separable” from the overall dress design are also protectable. But the dress design – as a whole – is not. Because dress designs as a whole are not protectable they are, quite literally, NOT property and all such designs can freely be used by anyone. For discussions on how to think through the “separability” concept as applied to clothes see Kieselstein-Cord v. Accessories by Pearl, 632 F.2d 989 (2d Cir. 1980) (buckle on a belt conceptually separable) [ http://j.mp/cBqWBw ]; Knitwaves Inc. v. Lollytogs Ltd., 71 F.3d 996 (2d Cir. 1995) (sweater designs) [ http://j.mp/bW2WTl ]. See also Flattery or Fraud: Should Fashion Designs Be Granted Copyright Protection? [ http://j.mp/9TVA7B ] and Couture Copyright: Copyright Protection Fitting For Fashion Design [ http://j.mp/a0qTNV ].
As far as drawings of clothes, they ARE copyrightable but the copyright attaches only to the DRAWING and not to the design of the clothes [which means that making the clothes does NOT infringe the copyright in the drawing of the clothes]. There is no harm in affixing a copyright notice onto the drawings of your dress designs, and registering the copyright, but it can only be used to stop folks from copying your drawings -- NOT the clothes that can be made from those drawings.
Design patent protection IS available for some clothing designs. See US Patent D459,572 for Dress [ http://j.mp/cv6LpL ], US Patent D385,087 for Party Dress [ http://j.mp/bxaGol ], and US Patent D549,930 for Shirt [ http://j.mp/9ryJNB ]. But most are NOT patentable because there's few designs that are truly novel and non-obvious in the fashion industry.
Trademark protection IS available for source-identifying trade dress (the Levi Strauss gold stitched pattern on pants pockets, for example,). But as “product design” trade dress, protection is afforded only if the design has achieved secondary meaning – which means that consumers must, when they see a particular design element on an article of clothing, immediately know which company made that clothing [when we see the familiar Levi Strauss gold stitching pattern on the back pocket of a pair of jeans we all know we’re looking at a pair of Levis]. It is a factual question whether secondary meaning exists or not – and that's an expensive thing to prove. See In re Slokevage, 441 F.3d 957 (Fed. Cir. 2006) [ http://j.mp/bLLyEk ]. In short, only very well known elements of certain fashion designs qualify as protectable trade dress.
If you’re making decent money selling your original clothing designs you need to speak with an intellectual property attorney.
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Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.
In my opinion, you should register your drawings with the United States Copyright Office.
While many lawyers think that dresses are simply "useful articles" and, therefore, not copyrightable, I believe that, provided there is sufficient originality, dress designs are copyrightable. Since a decision by the Copyright Office to register a work is generally given great deference, a successful registration would afford you considerable protection.
Registration with the Copyright Office is important for two other reasons: It is still considered a condition precedent to initiating suit on an infringement claim, and it may enable you to recover statutory damages and attorneys' fees. (Statutory damages generally range from $ 750 to $ 30,000 per infringement; up to $ 150,000 for a willful infringement.)
If you have not registered before the infringement takes place, you are generally limited to recovering an "actual damage" remedy.
You might well be able to register your drawings as a group or collection and therefore minimize the cost.
As a backup, you should also send yourself a collection of your drawings so that you have evidence of when they were created (the postmark). If they are ultimately determined not to be protected by copyright, you might nonetheless have a common law claim. Whether you will or not will depend on whether the claim is "preempted"- that is, whether federal law has displaced state law in the area.
Should your work be infringed, you will need to consult a copyright lawyer to determine whether you have viable claims.
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