924.3(A)(1) Fabric and Textile Designs Embodied in Clothing or Other Useful Articles
Although the copyright law does not protect the shape or design of clothing, and although fabric and textiles have useful functions [e.g., providing varying degrees of warmth and protection), designs imprinted in or on fabric are considered conceptually separable from the utilitarian aspects of garments, linens, furniture, or other useful articles. Therefore, a fabric or textile design may be registered if the design contains a sufficient amount of creative expression.
Example:
• Frederique Fallon creates a fabric design with swirls of color and images of people. She uses this fabric to produce a classic A-line dress. Frederique applies to register the fabric design and the dress. The registration specialist will register the fabric design because it is sufficiently creative, but will refuse to register the dress itself because it is a useful article.
924.3(A)(2) Costumes
Costumes are considered useful articles, because they provide the useful function of clothing the human body. See generally Registrability of Costume Designs, 56 Fed. Reg. 56,530 (Nov. 5, 1991) (discussing the Office's policy and several federal court decisions on the registrability of costume designs).
As with all useful articles, the registration specialist will examine costumes to determine if they contain two- or three-dimensional design elements that are separable from the costume itself, and to determine if those separable elements contain a sufficient amount of creative expression.
The fact that a costume may be intended primarily for ornamentation and show, and secondarily for covering the body, does not change the fact that the costume is a useful article. Whole- or partial-body costumes are considered useful articles and are subject to the separability test, even if they depict a person or thing, or illustrate cultural, historical, or occupational garb or dress.
Examples:
• Corinne Clark creates an outfit that includes boots, pants, a belt, a shirt, a vest, an eye patch, and a plastic sword. She files an application to register the outfit as a "pirate costume." The registration specialist will refuse registration because the clothing elements are not separable from the functional aspects of the outfit and because the sword is commonplace and unoriginal.
• Cornelius Change files an application to register a "witch costume" that consists of a white dress, pointed hat, high heeled shoes, broom, angel wings, and a skull-and-crossbones necklace. Because the wings and necklace are physically separable from the useful aspects of the costume, the registration specialist will examine these
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12/22/2014
