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.
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
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 ....
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:
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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