The Dubious Legal Rationale for Denying Copyright to Fashion

Samson Vermont

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

November 27, 2012

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.

Number of Pages in PDF File: 17

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

JEL Classification: K11, O31, O34

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Date posted: April 3, 2012 ; Last revised: January 8, 2013

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

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Samson Vermont (Contact Author)
University of Miami - School of Law ( email )
Miami, FL
United States

Charlotte School of Law
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