Fashion's Function in Intellectual Property Law

58 Pages Posted: 22 Aug 2016 Last revised: 29 Nov 2017

See all articles by Christopher Buccafusco

Christopher Buccafusco

Benjamin N. Cardozo School of Law

Jeanne C. Fromer

New York University School of Law

Date Written: 2017

Abstract

Clothing designs can be beautiful. But they are also functional. Fashion’s dual nature sits uneasily in intellectual property law, and its treatment by copyright, trademark, and design patent laws has often been perplexing. Much of this difficulty arises from an unclear understanding of the nature of functionality in fashion design. This Article proposes a robust account of fashion’s function. It argues that aspects of garment designs are functional not only when they affect the physical or technological performance of a garment but also when they affect the perception of the wearer’s body. Generally, clothes are not designed or chosen simply to look good. They are also characteristically designed or chosen to look good on. This approach clarifies the appropriate treatment of fashion design in intellectual property, and it exposes the conceptual limitations of the Supreme Court’s recent copyright decision in Star Athletica, L.L.C. v. Varsity Brands, Inc.

Keywords: Copyright, Patent, Design, Trademark, Function, Utility, Cheerleading, Costume, Dress, Clothing, Garment

Suggested Citation

Buccafusco, Christopher J. and Fromer, Jeanne C., Fashion's Function in Intellectual Property Law (2017). Notre Dame Law Review, Vol. 93, p. 51, 2017. Available at SSRN: https://ssrn.com/abstract=2826201 or http://dx.doi.org/10.2139/ssrn.2826201

Christopher J. Buccafusco (Contact Author)

Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

Jeanne C. Fromer

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012
United States

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