Second Circuit Throws Out Prom Dress Copyright Appeal

By Joseph Mandour on October 16, 2012

dress Los Angeles – The Second Circuit on Monday ruled that Jovani Fashion Ltd. cannot bring copyright infringement claims against its rival Fiesta Fashions over its design for a prom dress just because Fiesta’s dress also features sequins, ruching and tulle, affirming a Manhattan federal court’s decision to toss Jovani’s action.

Articles of clothing are considered “useful articles” not protected by the Copyright Act, except for certain narrow exceptions that Jovani failed to meet, the Second Circuit said in upholding Judge John G. Koeltl’s July 2011 ruling in favor of Fiesta.

Jovani argued that the dress in question deserves copyright protection because its design brings together a combination of features that can be identified separately from and can exist independently of the garment’s utilitarian aspects. Specifically, it pointed to 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.

Copyright protection is only granted to design elements of clothing when those elements, individually or together, are “physically or conceptually” separable from the garment itself, the Second Circuit said.

Physical separability can be shown when one or more decorative elements of a garment can actually be removed and sold separately without any adverse impact on the garment’s functionality, according to the appeals court.

Jovani has not alleged, nor could it possibly allege, that the design elements for which it seeks protection could be removed from the dress in question and separately sold, the Second Circuit ruled.

“As the district court correctly observed, the removal of these items would certainly adversely affect the garment’s ability to function as a prom dress, a garment specifically meant to cover the body in an attractive way for a special occasion,” the court said. ”No different conclusion obtains as to conceptual separability, which is evident when a designer exercises artistic judgment ‘independently of functional influences,’ rather than as ‘a merger of aesthetic and functional considerations.’”

The designer’s artistic judgment in applying the sequins, crystals, ruching and tulle does not invoke any concept other than that of clothing for a viewer, the appeals court said. Those design elements are actually used to enhance the functionality of the dress as clothing, it said.

“In short, here the aesthetic merged with the functional to cover the body in a particularly attractive way for that special occasion,” the court ruled.

Jovani argued that design elements that make a dress more attractive cannot be intrinsic to the garment’s utilitarian function, which is simply covering the body, but the appeals court said that argument is too narrow and is not supported by circuit precedent.

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