You say "sweaty," I say "arty," let's call the whole thing "separable"

Posted by Charles Colman

In an interesting interview aired by NPR yesterday, Dr. Howard Miller of the Creole Wild West Mardi Gras Indians explained why he and the other artisans who spend months creating elaborate Mardi Gras outfits costumes wearable art feel they should be compensated for their efforts (for example, from those who sell photos of the costume-wearers) via copyright protection.  In Dr. Miller's words, "it's a lot goes into the suits - time, hour, blood, sweat, tears, money [sic]."


However, for better or worse -- as one phone book publisher learned the hard way -- U.S. copyright law does not particularly care about the amount of labor that goes into a creation.  According to the U.S. Supreme Court,  per an essentially unanimous 1991 case called Feist Publications v. Rural Telephone Service Co., a creator's so-called "sweat of the brow" is irrelevant for copyright purposes.  What matters, instead, is whether the work at issue displays sufficient "originality," and is not otherwise barred from copyright protection (for example, because it consists solely of facts and ideas, or because it is a "useful article.")

As the Second Circuit explained in Chosun International v. Chrisha Creations, the federal courts have long considered "articles of clothing [to be] 'useful' items and, hence, excluded from copyright eligibility" (hence the legislation discussed in the previous post.)  The primary issue in the 2005 Chosun case was copyrightability -- not of clothing, per se, but of "animal-themed children's costumes, including a line of 'plush sculpture' costumes, each of which consists of a bodysuit and a sculpted hood." 


Clearly, most people would not use such costumes in the same manner as run-of-the-mill clothing -- the costumes' purpose was probably to entertain kids rather than to stay warm, cover one's... sensitive areas, or achieve whatever other purpose fashion sociologists wiser than I have recognized clothing serves.  Yet the Chosun court applied the same copyrightability test to the "plush sculpture costumes" that courts apply to clothing more generally: namely, can the allegedly copyrightable "component[s] of a useful article . . .  be removed from the original item and separately sold, without adversely impacting the article's functionality"?  If so, the removable portions are physically separable and may be copyrighted.


The Second Circuit went on to point out that copyright may attach to costumes when they contain "design elements that can be 'conceptualized as existing independently of their utilitarian function'" (the so-called "conceptual separability" test over which the "courts have twisted themselves into knots.")

The Chosun court ultimately ruled that "[i]t is at least possible that elements of Chosun's plush sculpted animal costumes are separable from the overall design of the costume, and hence eligible for protection under the Copyright Act."  A ruling like this means a case is still alive -- in other words, a win for the costume designers.


For the sake of brevity, let's leave our review of costume case law at that (I'm happy to take you on a personal tour of the remaining case law at your request), and circle back to the NPR story.  The Mardi Gras costume designers' attorney, Ashlye Keaton, who speaks up midway through the interview, has clearly done her homework.  Almost as if reading from Chosun, Keaton uses her airtime to clean up after her client clarify that the Mardi Gras costumes at issue "fall under copyright protection as works of art, as sculptures, because the designs are sewn onto canvas and other materials and they are worn not as costumes, but they're worn over clothing."  See how she invokes both physical and conceptual separability in a single sound byte?  Props to Ms. Keaton for effective media-lawyering.


Now, Keaton just has to get her client to memorize their all-important official position on why the costumes are copyrightable.  He has a ways to go: you can bet Keaton flinched when Miller explained that the "sweat" going into the works justified the compensation the costume creators are seeking.  Given the Supreme Court's unqualified rejection of the "sweat of the brow" as a basis for copyright protection in Feist, Miller's quote is definitely not one that any lawyer would want to see thrown back at her client in litigation over copyrightability.  If you ever wondered why lawyers force their clients to repeat that inane mantra, "no comment," ad nauseum, now you know.


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[As always, this is not legal advice, just information; don't rely on it without consulting an attorney... you know the drill.]