Out of all of the different types of protected creativity, fashion has fallen through the cracks more than any other. Copyright, trademark, and patent all have reasons to exclude fashionable creations and ideas. Can designers protect their brain babies?

Copyright.

First, Copyright protects artistic expressions, captured in a tangible medium. Copyright will not protect an expression of a useful item, like a washing machine, microwave, or clothing. Copyright will only protect pictorial, graphic or sculptural elements of fashion, such as a prints, patterns, and textiles.

However, these things can only receive protection if the these elements can be identified separately from the useful elements of the clothing. To prove this separation, one must prove that the artistic elements are physically and conceptually separable. Physically separable means the artistic elements can be removed from the clothing and sold separately, like a pictorial print on a t-shirt, or a floral design that can be reprinted on fabric.

Conceptually separable means that the viewer or audience is typically aware of a separate concept other than just the purpose of clothing, like no one believes a Halloween costume was worn for its useful clothing purposes. A court found that Halloween costumes were separate from the simple clothing elements. Unfortunately for fashion, prom dresses and specific tailorings have failed in attempts to make the same argument. The fifth circuit also found that work uniforms for a casino were not separate from the useful elements of the uniform and not protectable.

Trademark.

Next, Trademark protects things that identify the company behind a product or service. It protects names, phrases, symbols and logos. These things, if misused, could potentially fool a consumer into making a purchase under false information. The only way to protect a fashionable item under trademark is to put the logo on it, but the protection is only for the logo, not the item. For some designers like Gucci, the logo must be printed all over the item, so the item becomes the logo, and copycats could not make the item without duplicating the logo. This almost works, but copiers could just as easily avoid the logo and completely copy the item.

Trade Dress

Trade dress protects the way a company packages and presents their products. This protection is based on the appearance of the items and its packaging will identify the company that provides the product or service. An example of trade dress is like the bottle of a 5 hour energy drink, or box that comes with a happy meal. A company can seek remedies from another that uses a product or service’s specific appearances and packaging to trick customers to making a unwanted purchase.

Like trademark, a company would have to prove that the trade dress identity has acquired secondary meaning. Secondary meaning means the public easily identifies the company by the item or product, like the products popularity contributes to the protection. However, this would provide more protection for the packaging and marketability, than one would get for the actual item.

Patent

Under patent law, a artist can receive a design patent that covers a new, non-obvious ornamental designs on functional items. This protection last 14 years, but typically takes several months at least to register the patent. Most fashion designers would argue that designs are stolen, shared, and fall out of style within a year and could possibly be undesirable by the time the protection is granted.

This long processing system is due to the fact that the Patent Office is very strict on what is accepted and protected. The term “new” means it better not look like another registered patent in the system. The term “non-obvious” means there has to be a sense of creativity, like making a dress out of coins. An example of obvious design would be like zebra print, the idea of printing animal hide colors and designs is an obvious idea, that anyone with an interest in leopard or zebra could do.

Most fashion designers should apply for the design patent, to receive 14 years of protection. The designer will then use the 14 years to establish trademark and trade dress secondary meaning for the greatest protection.

IDPA

In 2012, a bill was introduced to a Senate Committee, which included the Innovative Design Protection Act (IDPA), a.k.a. the Fashion Bill. The IDPA gives 3 years of copyright protection to fashion designs that “(i) are the result of a designer’s own creative endeavor; and (ii) provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.” Since this bill was introduced, there has been very little lobby or push to revisit it again.

Some say with this new law, more designers will be encouraged to create more now that it can be protected and the exposure can be controlled. Others say that this will significantly hinder fashion, because now infringement will be an issue with true creativity. So which will happen? Will fashion designers make millions now that their rights are protected or will everyone be too busy suing each other to create anything?

At the end of 2015, a lawsuit was filed by CBS and Paramount against a writer and a production company for a movie infringing upon the copyrights of the Star Trek franchise. The movie is a prequel to the original Star Trek, set 21 years before the first Kirk episode. The movie is titled Axanar and follows a mentor of Kirk who made appearances in the original episodes.

The amazing thing is that this entire production has been funded by crowd-sourcing campaigns, like kickstarter or Go-fund. Through 3 campaigns,the company has collected over a million dollars. The writer and life-long fan said he wanted to show the entertainment world that a studio-quality movie can be made without billions of dollars. He also says that the movie is a love letter to the originals, but are love letters prohibited by copyright law?

In the complaint, CBS/Paramount allege the Axanar movie was directly and unabashedly intended to be derivative of the original works owned by Paramount and CBS. The Companies are claiming direct infringement, contributory infringement and various infringement; and are asking for $150,000 in statutory damages for each Star Trek work that was infringed, reasonable attorney’s fees and costs and an injunction to stop the Axanar group from continuing the film. The claims are against the company, the writer, Alec Peters, and 20 unnamed defendants called Does.

Direct infringement is where there is evidence that an individual intentionally unlawfully copied someone else’s protected work. Contributory infringement is where the individual did not actually commit the unlawful copying but contributed to the infringement. The best example is Napster, where Napster argued they were not copying the music. Technically, their users were doing the actual copying. The court held that Napster was responsible for providing the means and availability of the unlawful copying and could still be charged with infringement.

When I read contributory infringement in the complaint, I thought CBS was trying to sue the group of people donating to the kickstarter. Maybe these Does were only guilty of donating money to a website. This could potentially be ground breaking law, because the crowd-sourcing campaign is a new technology, and has not been pushed through the legal system to work out the legal disputes. Also, “contributing” to a Go-fund, could be found to be contributory infringement, if the funds are used to infringe. I know, this is exciting stuff.

Vicarious infringement is more a baby of employment law. A boss or employer can be vicariously liable for the misdeeds and negligence of their employees. This is based on the policy that the boss should train his workers to avoid risk and obey all laws. So in this setting, CBS is claiming that the Axanar group had the rights and ability to supervise their employees and failed to prevent them from infringing, and should be responsible for the employee’s infringement.

On the Axanar website, the group has a “Captains’s Log” that posts the progress of the film. The last entry is for February, and mentions the CBS/Paramount lawsuit and stopping production until after they file an answer in Federal District Court in California. I assume that the halt on production means that CBS got a preliminary injunction, which means stop everything now, until the case is decided.

If CBS and Paramount have their way, they will have a permanent injunction against Axanar and will collect money to pay them for their  loss and harm. I believe the true loss and harm is the fact that a fan wrote a love letter to a big company and a franchise, and the big company sued them for it.

 

Recently, many articles have been written about The Diary of Anne Frank, a story from the perspective of a young, dutch girl who grew up in hiding from the Naxis force in Germany during WWII. Anne Frank, the “author” of her diary, died in 1945, which means the book should fall into public domain at the end of 2015.

However, the Anne Frank Fund, the “owner” of the copyright, is disputing its length of protection. The Anne Frank Fund (AFF) is a charitable organization created by Anne’s father, Otto Frank. Otto made the organization the universal heir of him and his daughter, so the org “owns” every copyrightable thing created by the pair.

Originally, the copyright argument was that Otto, the father, was a co-writer of the story, because he claimed to have written the prologue and epilogue and contributed to the story. As a joint writer, the protection clock would start counting down 70 years from the death of the last living author. Otto died in 1980, so his protection should continue until 2050. The problem is that in order to be a joint work you must plan to be a joint work from the beginning of the creation. I highly doubt that Otto and Anne decided to write her diary together as co-authors, fully aware of its future popularity as a novel and the necessary intellectual property protections.

Another route around the public domain, is to argue that the original work by Anne Frank has been improved and transformed into a new work or compilation. A compilation is like a “Best Of” album, that can be resold as a separate work. AFF argues that Otto created a Best Of version of the book, and maintains copyright protection for his new work. A compilation would have been created later and the Diaries would have a longer protection.

On the AFF website, there is answers to questions about the copyright, such as “Why is AFF the copyright holder of the Diaries?”, “Who wrote the Diary of Anne Frank?”, and my favorite, “How can I ensure that I am not infringing the Diaries’ rights?”. They say that Anne was the sole author of the Diaries, and there are many versions that will be protected past 2015. The website has links that lead you to other articles that confirm the extension of protection, but based on when the manuscripts were published.

So they dropped the dad’s argument and decided that the length of protection should be based on when the Diary was published to the masses, not the death of the author.  Since the works were published in 1986 after the death of the author, Dutch law grants 50 years of protection, ending in 2037. This Dutch Law will likely be increased to 70 years to match up with other countries after the TPPA is passed.

This policy of calculating from the date of publication or creation was created to cover works where the death of the artist was not definite or maybe the work was not published and marketed until after the death of the artist. In U.S. law, the author gets 70 years of protection after death,  95 from the date of publication, or 120 from the date of creation. This gave the right holders every chance to effectively proof with some certainty the actual date the clock begins to tick. It’s not meant to be a system to shop for the longest protection possible, or to avoid public domain like a disease.

The AFF website makes sure to inform the reader that just because they will sue you, does not mean you cannot buy rights to the book or its many versions. I wonder if Anne ever thought that her daily, private notes would be read by millions, some in classrooms and libraries. However, I’m almost sure she would not have intended her inspirational story to require a license and fee. Once again, statute has crippled the Public Domain.

I just returned back from New Orleans, where I was able to celebrate the holiday with friends and family. It was a very nice vacation, but still, was not lacking in intellectual property issues.

First, the is a group of performers called the Mardi Gras Indians, who construct these elaborate suits, crowns and costumes.  Many of which are so connected to the groups history and culture that you can identify the group by the craft of the costume.

These groups are trying to copyright their costumes are works protected by the Copyright Act. However, most judges would view these costumes as clothing, and unfortunately for fashion fans, clothing in itself is not copyrightable. The legal system has decided many times in many different settings, that clothing is simply a useful item and not a work of art.

Of course, many would argue that clothing has evolved so much throughout history, and so much fashion is now made for aesthetics and is not useful in any sense other than beauty and art. At this point, I believe that the law agrees that fashion is art, but the real fear is the onslaught of copyright registration and disputes that will crash into the legal system once clothing can be protected.

Another issue I spotted actually happened a while ago in the 2000s, involving two bars in the French Quarter. Both bars were selling an infamous drink on Bourbon Street, called the Hand Grenade. You can see the original bar’s advertising at their website. http://tropicalisle.com/ This drink had a specific cocktail, a sweet, melon-flavored Hurricane, and had the same container, a bulbous bottom with a smiling face, and a long top that flares at the top, also called a Yard glass.

The court found that the second company had infringed the intellectual rights of the first handgrenade, and tropical Isle maintains the Hand grenade today. They are pretty tasty, if you like tons of sugar and hangovers.

I was also curious about the floats and whether they can be protected. I have not found any information on them, but I will keep looking.