ARTS & MEDIA LAW

Copyright protection can be exceedingly complicated when it comes to clothing lines. While the clothing itself is typically not deemed eligible for copyright protection, certain design elements may be protected. Generally, copyright protection does not extend to articles deemed 'useful,' such as clothing intended to be worn. If, however, design elements can be perceived separately from the clothing, they may be eligible for copyright protection, particularly if said elements are found to hold significant artistic value. Likewise, certain types of fabrics or textiles could be copyrightable if they can be perceived separately from the original article of clothing or placed on alternate mediums. Similarly, an original design for a textile or fabric is usually copyrightable.

Whether or not a clothing's design can be copyrighted depends largely on if the clothing in question is deemed 'useful.' Depending on the circumstances, however, original artistic clothing designs involving graphic arrangements of shapes, colors, or patterns can be deemed copyrightable. Likewise, specific fabrics or textiles can, in some circumstances, be copyrighted — assuming that the design contained therein could be transferred to another medium and still be deemed artistic. Sketches of designs can also be copyrighted, but may not necessarily prohibit ensuing products that resemble the original sketch. For example, in copyright law works of art depicting articles found in nature receive a very thin copyright, thus, such designs are generally only protected against verbatim or near identical copying.

Copyright protection does not explicitly extend to ideas. Rather, copyright protects the expression of ideas. If an author somehow records his or her ideas, the resulting work is protected by copyright law. If an idea is developed but does not hold some tangible manifestation, it cannot be protected against infringement, so exclusive rights do not exist. Even when ideas are physically represented, it can be difficult to claim ownership — hence the importance of registering for copyright protection with the U.S. Copyright Office.

Copyright terms vary depending on when a particular work was created, if it has been published, and whether it has been registered for federal copyright protection. In most cases, however, copyright extends through the duration of the artist's life, as well as seventy years after he or she dies. Copyright term is a very complex area of the doctrine and requires legal analysis on a case by case basis.

Copyright procedure for designs largely echoes that for other creative works. The process begins with the creation of a fixed version of the design, such as a blueprint or sketch. This fixed edition should clearly show the elements of the design. From there, file for copyright protection with the U.S. Copyright Office. Both written and online applications are available. Additional forms may be required for specific types of designs, such as masks or ship hulls. Upon submission of the application, a filing fee must be paid and a copy of the desing must be uploaded to the copyright office via the copyright.gov website or two non-returnable copies of the design must be provided with a paper application.

While copyright protects a variety of works, several standards must be met. For example, copyrightable works must occur in tangible form. Hence, choreographed pieces or improvised speeches may not always be copyrightable, especially if they are not notated or recorded. Usefulness of the work is also taken into account. Clothing, for example, is not technically protected by copyright, as it is deemed 'useful.' However, certain design elements portrayed on clothing or some types of textiles used to create clothing can be copyrightable. Ideas and inventions are explicitly left out of copyright protection — rather, they fall under the umbrella of patent law.

Technically, a copyright is free, as the United States Copyright Office deems any work of art in tangible form as copyrighted as soon as it is created. That being said, it can be tricky to prove copyright ownership and protect works against infringement if the copyright is not registered with the copyright office. Filing for copyright registration with the U.S. Copyright Office may be the best approach. IAn application for copyright registration can be as low as $35.

Typically the answer is yes, however there are exceptions. Most notably, the fair use doctrine allows the copying of others artwork and says that such copyright is not infringement. Fair use is a complete defense to infringement, but is very difficult to prove, not to mention expensive. While copying someone else's art is often against the law, considerable gray area can make it unclear as to whether this type of 'infringement' is enforceable. For example, appropriation artists like Richard Prince and Jeff Koons often rely on the fair use doctrine to appropriate other people’s artwork to create “new art”. Furthermore, a lot depends on the age of the artwork, the public's access to it, and whether the copied version is eventually sold by the infringer. Legal copyright violations typically occur for works of art created in the last several decades — particularly if the copied work is used for financial gain. Copyright protection generally continues for the artist's entire lifespan, as well as seventy years after his or her death.

While the United States Copyright Office deems all tangible works of art copyrighted as soon as they are created, it can be difficult to prove ownership of these copyrights and protect them from infringement. In most cases, protection is best obtained by clearly identifying oneself as the owner of the copyright. This could be accomplished by signing the artwork, or displaying the copyright symbol “©” or the word “Copyright”, plus your name or the copyright holder’s name and the year the work was created. This notification should be inconspicuously displayed somewhere on the work to put others on notice that you claim copyright in the work. More importantly, you should identify yourself as the owner of the copyright by filing for copyright registration at the U.S. Copyright Office. Filing involves completing an official application, paying a fee, and depositing a copy of the copyrighted work to the U.S. Copyright Office. Beyond filing for copyright registration and marking your work to put others on notice of your claim to copyright, you should police the internet for infringers. There are software programs you can use for this sort of thing, and when you find an infringer you can employ the Digital Millenium Copyright Act to submit notice and take-down requests to remove infringing material from online, and follow up with cease, desist, and demand letters to the infringers.

United States Copyright Law states that artwork is legally copyrighted as soon as it is created and fixed in a tangible form that can be perceived directly or with help from a machine. However, while copyright automatically applies as soon as tangible form has been achieved, proving ownership of said artwork can be tricky. It is therefore worthwhile to register for copyright protection with the U.S. Copyright Office. This provides considerable proof of ownership in the event of infringement, thereby making it easier to enforce your copyright in court.