Second Circuit Dismisses Appeal from New York Court’s Decision in Prom Dress Copyright Case

As reported by Law360, the Second Circuit last Monday affirmed the dismissal of Jovani Fashion Ltd.'s copyright case against clothing designer Fiesta Fashions. Jovani Fashion, Ltd. v. Fiesta Fashions, 2012 U.S. App. LEXIS 21245 (2d Cir. N.Y. Oct. 15, 2012) [enhanced version available to lexis.com subscribers]. The Second Circuit rejected Jovani's claim that its prom dress merited copyright protection. Jovani based its copyright claim on the arrangement of decorative sequins and crystals on the dress bodice, the horizontal satin ruching at the dress waist and the layers of tulle on the skirt.

The issue before the court was whether the decorative elements (placement of sequins and crystals, satin rushing, tulle layers) could "be identified separately from" and were "capable of existing independently of, the utilitarian aspects of the article," and thus, were not functional. The court adopted a broad view of functionality in which a garment's function is not just "to cover the body" but "to cover the body in a particularly attractive way for that special occasion," with the result that "the aesthetic merge[s] with the functional." As the court concluded:

While such dresses plainly have a decorative function, the decorative choices, as we have already observed, merge with those that decide how (and how much) to cover the body. Thus, a jeweled bodice covers the upper torso at the same time that it draws attention to it; a ruched waist covers the wearer's midsection while giving it definition; and a short tulle skirt conceals the wearer's legs while giving glimpses of them. In sum, the aesthetic and the functional are inseparable in the prom dress at issue ....

The court distinguished the Jovani copyright case from Chosun Int'l v. Chrisha Creations, Ltd., 2005 U.S. App. LEXIS 13042 (2d Cir. 2005) [enhanced version available to lexis.com subscribers], in which the plaintiff claimed copyright protection for a Halloween costume. There, the court stated that an element of a costume would be conceptually separable if it "invoke[d] in the viewer a concept separate from that of the costume's 'clothing' function," and if its "addition to the costume was not motivated by a desire to enhance the costume's functionality qua clothing." In Jovani's copyright case:

the artistic judgment exercised in applying sequins and crystals to the dress's bodice and in using ruched satin at the waist and layers of tulle in the skirt does not invoke in the viewer a concept other than that of clothing-as the design of a Halloween costume in Chosun invokes a character. Rather, these design elements are used precisely to enhance the functionality of the dress as clothing for a special occasion.

The Jovani copyright case is an important copyright decision because it shows that in the absence of a statute, fashion design protection is limited. In the spirit of the season, Halloween costumes may still be protectable, but that's that. If the decorative elements of fashion design are not protectable under current law, what's left?

For more information on this case, read Did Your Prom Have a Copyright Theme? Probably Not, but a Recent New York Copyright Case Has a Prom Theme

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