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Albert Minn is a patent attorney with 11 years of experience practicing before the United States Patent and Trademark Office.  

Can You Copyright Clothing Designs?

Yes and no.  Like most legal questions, a general rule (i.e., clothing designs cannot be protected through copyrights) exists with some exceptions to that rule.  Even though this area of law has been well debated in the past, lawyers and judges are still attempting to find the boundaries of when clothing can and cannot be protected by copyrights. 

The general policy of copyright law is to encourage creativity that benefits the public.  Courts have ruled on cases with this underlying motivation in mind and have attempted to strike a balance between giving creators certain protections to incentivize them to continue creating original works, and ensuring those protections and rights are limited and temporary such that the public can add to the creation and provide additional benefits to the public.  Thus, copyright laws rarely protect facts or any language that serves a utilitarian purpose. 

When it comes to fashion and clothing, courts have generally held that clothing is non-copyrightable because clothing serves a fundamental utilitarian purpose: to keep us warm, protected, and covered to adhere to public decency. See Fashion Originators Guild v. FTC, 114 F.2d 80 (2 Cir.1940). Thus, courts have decided that these utilitarian functions outweigh any ornamental or design features of the clothing item (i.e., the style or cuts of a particular clothing item, such as a dress).

Exceptions? Some Elements of Clothing are Protectable by Copyright Laws.

Yet, exceptions to this rule do exist. In particular, if features that can be identified separately from, and that are capable of existing independently of, the utilitarian aspects of the clothing do exist, then copyright protection may be obtainable by the creator. See Brandir Intern., Inc. v. Cascade Pacific Lumber Co., 834 F. 2d 1142 (2 Cir. 1987). What does this mean? If a portion of the clothing item could be taken off of the clothing, and that portion would independently meet the requirements for copyright protection, then that portion could be eligible for copyright protection.

Fabric Prints may be Protected by Copyright

One example of a portion that would independently meet the requirements for copyright protection if taken off the clothing item is a particular fabric print. While no copyright protections exists for the cut of the cloth, or the design of the clothing item as a whole, the print found on the fabric or clothing item is copyrightable so long as if fulfills the requirements for copyright protection: fixation, expression, and originality. But like images, paintings, and other visual art mediums, one could very well produce a “knockoff” clothing pattern that may be different enough to overcome claims of copyright infringement and/or to warrant its own copyright protection.  Thus, T-shirts, hoodies, or other clothing items with original graphics on them that you made or hired someone to make may be protected from others’ copying/distributing/selling that graphic itself without your permission.  If you have questions about protecting your clothing print designs or other copyright questions, give Grell & Watson a call at (919) 825-3309!