Boats Are Art; Is Fashion?

The line between art and non-art is difficult to discern -- and a crucial issue in copyright law.

It is oft-said that beauty is in the cornea, iris, and pupil of the individual who is sizing up the subject under consideration. Something qualifies as beautiful only when someone says so. And art qualifies as art in exactly the same way. A vacuum cleaner does not become art until an artist puts it in a translucent box and tells us to look at and appreciate it as such. To borrow and paraphrase Justice Potter Stewart’s dog-eared line regarding the legal definition of hard-core pornography, we know art when we see it. But, unlike two people fornicating, the line between art and non-art is much more difficult to discern — and particularly troublesome given that copyright protection exists only for artful works.

Our highest court has had a number of opportunities to decide what is art in the eyes of the law. In 2011, they sized up video games and, while there is no evidence that Justice Samuel Alito has ever run down a drug dealer during an epic game of Grand Theft Auto, the court found it relatively easy to side with those arguing that video games were indeed art. This ability to identify art is facilitated by the fact that our justices, for the most part, are appreciators and practitioners of the arts, writing books, creating lectures, and engaging in other expressive pursuits. Justice Ruth Bader Ginsburg, in particular, has a voracious interest in opera and theater, one so strong that the on-the-go Ginsburg recently took to the stage at the Washington National Opera to drop some spoken word during a performance of The Daughter of the Regiment, that beloved Italian classic from the 1840s. And Justice Stephen Breyer recently revealed himself to be a knowledgeable art history buff, including references to Van Gogh’s “Shoes” (a painting of the titular footwear) and Marcel Duchamp’s “In Advance of the Broken Arm” (a store-bought, artist-curated shovel) in a dissent addressing what he believes separates art from non-art.

The art versus non-art binary analysis is important to creators looking to protect their works. This analysis is made swampy by what’s known as the “useful article” doctrine, which states that works that are not expressive in a way that can be perceived apart from the article itself are not works of art for purposes of copyright protection. As the Copyright Act helpfully states: “A ‘useful article’ is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” In more concrete terms, there is no copyright protection for a basic table because a table is a useful thing upon which we place our bowls of cereal or for a shovel because shovels are useful for digging holes. And we do not want to preclude the copying of these useful things. Courts have struggled mightily to draw a line between these useful articles and those that, while useful, are independently expressive, as is required to derive protection under the Copyright Act.

The minds of reasonable Supreme Court justices differed on the issue earlier this year when they decided Star Athletica LLC v. Varsity Brands, Inc. The decision was not unanimous, but the majority found that the cheerleader outfits at issue — which were useful because, like most clothing, they protect us from the elements, and, unlike most clothing, they conveyed to the world that those wearing the outfits were cheerleaders — were nevertheless protectable under the Copyright Act because one could perceive the artistic elements of the outfits as distinct from the garments themselves and those distinct elements were creative. This decision was not entirely earth-shattering, as it applied in a straightforward manner in precedent going back to the 1950s, when the Supreme Court looked at some stylish lamps and said that the lamps were protectable by copyright despite the fact that they functioned to provide light.

One of the more interesting aspects of the decision was an argument advanced not by the parties but by the United States, as amicus curiae. The government took the position that the actual artwork at issue should be the drawings of the outfits that the copyright holder deposited with the Copyright Office, and the alleged infringer should not escape liability simply because it copied that artwork onto a blank cheerleading outfit. The Court declined to address this position because it was not advanced by the parties, but it raises the interesting question of exactly why a company should get away with copying artwork simply because the copy is placed on a garment.

Our answer begins with a U.S. copyright doctrine, not present in the analogous laws of other countries like France and Italy, providing that copyright protection is categorically denied to the shape, silhouette, and overall design of garments. This is a result of our long ascent from the sweatshop basement to the upper echelons of the world of fashion innovation. Back in the day, when the United States was honing and shaping its copyright laws, we Americans were reproducing slavish copies of the stylish avant garde tea gowns being dreamed up by our French and Italian counterparts, and we wanted to be free to do so without legal implications. So, we simply decreed that any and all clothing designs, regardless of creativity, complexity, or novelty, would be excluded from copyright protection under the useful article doctrine. In other words, we decided that clothing was not capable of being any more creative than a shovel, and should enjoy just as much legal protection.

In the years since, companies with an interest in copying from creative designers, and selling large numbers of mass-produced pieces that are “inspired by” emerging artists’ most innovative designs, have argued that there is no need to update our laws to be more artist-friendly and in line with those in Europe and elsewhere. Doing so, they squeal, would lead to unnecessary litigation and product development burdens while rewarding designers who are simply taking from past designs in most cases anyways. Upon hearing these protestations, certain minds will turn to not the most obvious of places: the world of boat hulls.

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Yes, boat hulls. Back in the 1970s, the major dudes in Congress considered extending copyright protection, on a limited basis, to cover useful articles. But, traction was not found in those tie-dyed times, and it was not until 1998 that they got back around to the issue. And, even then, when they extended copyright protection for the first time to useful articles, that extension reached only as far as the hulls of boats.

For various reasons that are frankly a bit boring, boat hulls were given copyright protections that were more limited in time and scope than other copyrighted works, but were protections nonetheless. And clothing designers were left out in the cold. It is unclear why the clothing industry, a dynamic world full of creative and passionate artists, did not get the love that the maritime industry received with this extension of the law. Lobbying likely played a big part, as did the fact that those designing the boat hulls controlled much of the industry power.

The clothing industry, on the other hand, is often controlled not by the creatives or the designers, but by the mass-producers, companies that are selling tens of thousands of often cheaply produced items and that do not necessarily want the balance of power to tilt to the designers who create new works. Much of the innovation and creative design is done by independent, up-and-coming, or simply smaller designers who do not have the resources of these mass producers. And this schism makes it difficult to petition for an update in the law.

So fashion designers, some of the most talented artists in any discipline, remain helpless in defending their new and innovative designs, which the law declares to be “useful articles” and thus free for copying, much like a table or a shovel. And copied they are, and will be, until the powers that be come around to the idea that garment designs, like boat hulls, can be art and worthy of protection.

Earlier: Supreme Court Says Decorative Fashion Design Elements Protected By Copyright Law

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Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.