The overall design (such as the shape and cut) of a garment, bag or shoe is not protectable under current U.S. Copyright law because such items are considered “useful articles.” However, Section 101 of the Copyright Act provides protection for the “pictorial, graphic or sculptural features [of a useful article] that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the [useful] article.”
In the fashion world, this provision of the Copyright Act allows companies to protect original pictorial, graphic or sculptural features that are applied to garments, bags and other accessories. Examples include: fabric designs like a floral pattern; graphic art like an artistic rendition of a snake or tiger; and sculptural 3-D hardware adornments like belt buckles or buttons. Copyright protection only covers the artwork itself, not the overall configuration of the garment or other product to which it is applied.
For decades, courts and commentators have struggled to fashion a suitable test to determine when a pictorial, graphic or sculptural feature of a useful article (such as a garment) is protectable under § 101 of the U.S. Copyright Act. On March 22, 2017, in a 6-2 decision written by Justice Thomas, the Supreme Court provided long-awaited clarification. Much to the relief of the fashion industry, the Court adopted a test that preserves copyright protection for applied art to apparel and fashion accessories.