The Dubious Legal Rationale for Denying Copyright to Fashion

17 Pages Posted: 3 Apr 2012 Last revised: 8 Jan 2013

Samson Vermont

University of Miami - School of Law; Charlotte School of Law

Date Written: November 27, 2012

Abstract

This essay clarifies the useful article doctrine and argues that it does not, as clarified, bar copyright for fanciful clothing. Clarification is necessary because the drafters of the 1976 Act botched their attempt to codify the doctrine. As written, the Act denies copyright to a useful article unless its aesthetic features are separable from its utilitarian function. Separability, however, is irrelevant. What matters is whether the article has unconstrained features. The features of many fanciful garments are unconstrained enough for copyright. Indeed, they are more unconstrained than the features of other useful articles that courts already protect.

Keywords: copyright, fashion, clothing, useful article, separability, functionality, IDPPPA, innovative design

JEL Classification: K11, O31, O34

Suggested Citation

Vermont, Samson, The Dubious Legal Rationale for Denying Copyright to Fashion (November 27, 2012). Available at SSRN: https://ssrn.com/abstract=2033350 or http://dx.doi.org/10.2139/ssrn.2033350

Samson Vermont (Contact Author)

University of Miami - School of Law ( email )

Miami, FL
United States

Charlotte School of Law

Charlotte

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