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Prom Dresses Decorate the Second Circuit, but Receive No Copyright Protection

By Sarah Robertson, Susan Progoff, Fara Sunderji and Jena Tiernan of Dorsey & Whitney LLP

On October 15, 2012, the Second Circuit affirmed the dismissal of Jovani Fashion Ltd.'s (Jovani) copyright claim against Fiesta Fashions for copying its prom dress design. The Second Circuit rejected Jovani's argument that the "arrangement of decorative sequins and crystals on the dress bodice; horizontal satin ruching at the dress waist; and layers of tulle on the skirt" are copyrightable based on a theory of conceptual separability. For conceptual separability to apply, the designer must have exercised artistic judgment separate and apart from the functional purpose of the article. However, the dress in this case could not be copyrightable because "the aesthetic merged with the functional to cover the body in a particularly attractive way for that special occasion," and thus the prom dress at issue fell squarely into the definition of a useful article. The court's opinion focused on the two main functions of clothing: decorating the body and covering it. Interestingly, the court distinguished Halloween costumes, which can contain copyrightable elements if they invoke a character rather than adding to the clothing function of the costume. The Second Circuit's opinion reaffirmed that fashion designs are not protected from copying under the current law.

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This page contains a single entry from the blog posted on February 7, 2013 3:55 PM.

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