A Tri-Partite Classification Scheme to Clarify Conceptual Separability in the Context of Clothing Design

Abstract

This Note considers the conceptual separability doctrine of American copyright law in the context of clothing design. Conceptual separability, a prerequisite for copyright protection of the designs of useful articles (a subset of pictorial, graphic, or sculptural works), occurs when the aesthetic expression of the useful article can be conceptualized as separate from the functional aspects of the object. In clothing design, however, where fashion often meets function, the distinction between "aesthetic" features and "functional" blurs.

Federal courts have been struggling with conceptual separability since the Copyright Act of 1976 took effect. To this day the United States Courts of Appeals have failed to agreed on a uniform approach for determining conceptual separability. The courts are further divided as to the best approach to analyzing clothing design. The most recent case comes from the Sixth Circuit, involving the conceptual separability of cheerleader uniform designs, and underscores the need for a uniform conceptual separability standard in the context of fashion.

This Note discusses the existing case law on conceptual separability, its nuance in the context of clothing, and discusses the issues with the current dichotomous classification between "pattern design" and "garment design." It then proposes a tri-partite classification scheme, identifying a clothing design as falling into one of three categories: "fabric pattern design," "fabric graphic design," and "garment design." In most cases, conceptual separability would only apply to the "fabric graphic design" category, which contains designs that generally are intended to interact with the wearer to influence the perception of the wearer’s body. Such a design categorization scheme clarifies the muddled standards for copyrightability of clothing design, increases predictability within the fashion and garment industries, and promotes judicial economy by limiting the cases that invoke the confusing separability doctrine as applied to clothing design.

Keywords: copyright

JEL Classification: O3