{"id":38,"date":"2008-04-01T13:29:06","date_gmt":"2008-04-01T18:29:06","guid":{"rendered":"http:\/\/www.danziger.com\/articlesnews\/?p=38"},"modified":"2008-04-01T13:29:06","modified_gmt":"2008-04-01T18:29:06","slug":"the-material-world","status":"publish","type":"post","link":"https:\/\/danziger.com\/?p=38","title":{"rendered":"The Material World"},"content":{"rendered":"

When it comes to copyright protection, blending art and fashion creates many shades of gray.<\/strong><\/p>\n

What fools we were! We had read about the runway show Gagosian Gallery held during New York\u2019s fall Fashion Week, which featured $4,000 jeans made by Levi Strauss & Co. and decorated with Damien Hirst\u2019s famous skull pattern in Swarovski crystals. We had seen the Richard Prince exhibition at the Guggenheim Museum, where guests were given an opportunity to preorder hand-embroidered Louis Vuitton bags designed by the artist and Marc Jacobs. But we hadn\u2019t yet realized how interwoven the worlds of art and fashion have become.<\/p>\n

It took our client Mitch, an art dealer from L.A., to show us the light. Mitch had decided to jump on the fashion-meets-art bandwagon and used his gallery to exhibit apparel designed by well-known artists\u2014think ugly sweaters at Old Master prices. To our amazement, the costly clothes were flying out of the gallery, but Mitch had a problem: A competitor was stealing his artists\u2019 designs and manufacturing cheap knock-offs. What was our advice?<\/p>\n

The Copyright Act of 1976 protects \u201cpictorial, graphic and sculptural works,\u201d which include \u201ctwo-dimensional and three-dimensional works of fine, graphic and applied art.\u201d It does little, however, to protect items with intrinsic utilitarian functions, such as clothing. The design of a so-called useful article is copyrightable only to the degree that its aesthetic aspects are separable from its utilitarian ones. So an original artistic design that is printed on clothing\u2014say, Andy Warhol\u2019s Mao on a T-shirt or a Chuck Close self-portrait on a dress\u2014is protectable but not the \u201cuseful\u201d parts of the clothing, such as the design of the sleeve or the neckline. The problem is that when it comes to fashion, decorative and utilitarian features can be hard to separate, leading to distinctions that are often arbitrary.<\/p>\n

Consider the 1980 Second Circuit case Kieselstein-Cord v. Accessories by Pearl, Inc. The designer Barry Kieselstein-Cord had sold belt buckles that he described as both jewelry and sculpture and that were eventually accepted into the permanent collection of the Metropolitan Museum of Art, in New York. Kieselstein-Cord sued Accessories by Pearl when the New York belt manufacturer began selling copies of his buckles, some of which it even referred to as \u201cBarry Kieselstein Knockoffs.\u201d For its part, Accessories by Pearl argued that the buckles weren\u2019t copyrightable because they were merely \u201cuseful articles,\u201d with no pictorial, graphic or sculptural features that could be identified separately from, or exist independently of, the buckles\u2019 utilitarian aspects. The court disagreed and allowed the beltbuckle designs to be copyrighted. It reasoned that the decorative or aesthetically pleasing aspect was primary and the utilitarian function secondary.<\/p>\n

\u201cSo what are the chances of copyrighting this work?\u201d Mitch asked, hauling out a three-piece ensemble composed of a coat cut in the shape of the old Soviet Union, a mask dripping with rubies and diamonds that resembled ketchup and mayonnaise, and slippers that looked like the paws of a Siberian tiger. The work, created by a rising Russian contemporary-art star, was titled Russian Dressing\u2014and Charles looked sensational wearing it.<\/p>\n

The leading cases in this area suggested that the coat would not be copyrightable because it would be considered a useful article. In the 1989 Second Circuit case Whimsicality, Inc. v. Rubie\u2019s Costume Co., costume designer Whimsicality asserted that a competitor, Rubie\u2019s, was making cheap copies of designs, such as the Pumpkin, Bee, Penguin and Spider, for which Whimsicality had already registered the copyright. The plaintiff insisted in its copyright application that the outfits were actually \u201csoft sculpture,\u201d thereby meriting protection. But the court determined that the outfits were clothing, not sculpture, and thus not copyrightable, holding that \u201cthe word sculpture implies a relatively firm form representing a particular concept. The costumes in question have no such form.\u201d<\/p>\n

\u201cSince when is a judge qualified to decide what constitutes art?\u201d Mitch asked. Since never, we replied, referring him to our article \u201cBut Is It Art?\u201d [see Brothers in Law, Art+Auction, May 2006], which describes judicial determinations of essentially artistic matters.<\/p>\n

In contrast to the coat, Mitch\u2019s mask was copyrightable, we believed, because the United States Copyright Office had determined in 1991 that masks are nonutilitarian. The slippers might also be protectable, since a 1985 federal case, Animal Fair v. Amfesco Industries, had granted copyright protection to a particular novelty slipper resembling bears\u2019 claws. The court reasoned that certain aspects of the slippers, such as the \u201cimpractical width and shape\u201d of the sole, the particular combination of colors and the slippers\u2019 profile and toes \u201care all sculptural features which comprise the artistic design and which are wholly unrelated to function.\u201d In this decision, the court drew a distinction between design features and utilitarian aspects that\u2014as with Hirst\u2019s jeans or Prince\u2019s handbags\u2014seems murky at best.<\/p>\n

We thought that a number of other pieces in Mitch\u2019s exhibition were also protectable, starting with one of his artists\u2019 handbags. It was painted with interesting variations on the logo of Mitch\u2019s art gallery, reminiscent of Takashi Murakami\u2019s use of a signature design element in his best-selling handbag line for Louis Vuitton in 2002. We were confident that copying the bag without permission would violate Mitch\u2019s right of \u201ctrade dress,\u201d a branch of trademark law that aims to prevent consumer confusion about the source or manufacturer of a product. \u201cTrade dress can protect the shape or design of clothing,\u201d observes intellectual-property-law expert Alexandre Montagu, \u201cbut only if the shape or design of the product has become sufficiently distinctive to indicate source. For example, Chanel\u2019s interlocking-C design may be protectable under a theory of trade dress because consumers would likely associate those Cs with Chanel.\u201d<\/p>\n

Furthermore, knowing that Mitch\u2019s exhibition was traveling to venues in France and the U.K., we reassured him that those countries actually afford fashion designers far greater protection than the U.S. does. British law protects registered and unregistered industrial designs for 10 to 15 years. Similarly, French copyright law applies to original fashion designs from the moment the work is created.<\/p>\n

\u201cSo why isn\u2019t anyone trying to change the law here in the U.S. to protect fashion designs?\u201d Mitch demanded.<\/p>\n

Actually, someone is. In 2006, Representative Bob Goodlatte of Virginia introduced a bill in Congress to allow fashion designers to secure short-term copyrights for fashion works. The Design Piracy Prohibition Act, as it is called, would modify the Copyright Act to protect clothing designs and accessories for three years, after which they may be freely copied. The bill has been referred to a House subcommittee but has not yet been voted on by the full House of Representatives.<\/p>\n

By the end of our meeting, Mitch still couldn\u2019t understand why U.S. law fails to treat fashion as true art, deserving of the same protection. After all, he declared, major museums have entire departments\u2014and hugely popular exhibitions\u2014devoted to fashion. Wasn\u2019t it arbitrary to view fashion as \u201cuseful articles\u201d rather than as art, especially since the two have now become so intertwined?<\/p>\n

We agreed\u2014and now have a $10,000 sweater from Mitch\u2019s gallery to prove it.
\n
\n“The Material World” originally appeared in the April 2008 issue of Art+Auction.<\/em><\/p>\n

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When it comes to copyright protection, blending art and fashion creates many shades of gray. What fools we were! We had read about the runway show Gagosian Gallery held during New York\u2019s fall Fashion Week, which featured $4,000 jeans made by Levi Strauss & Co. and decorated with Damien Hirst\u2019s famous skull pattern in Swarovski … <\/p>\n

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