Fashion's Function in Intellectual Property Law by Christopher Buccafusco, Jeanne C. Fromer :: SSRN

Fashion's Function in Intellectual Property Law by Christopher Buccafusco, Jeanne C. Fromer :: SSRN

Clothing designs can be beautiful. But they are also functional. Fashion’s dual nature sits uneasily in intellectual property law, and its treatment by copyright, trademark, and design patent laws has often been perplexing. Much of this difficulty arises from an unclear understanding of the nature of functionality in fashion design. This Article proposes a novel account of fashion’s function. It argues that aspects of garment designs are functional if they affect the perception of the wearer’s body. Clothes are not designed simply to look good. They are also designed to look good on. This approach clarifies the appropriate treatment of fashion design in intellectual property, and it offers a solution to Varsity Brands Inc. v. Star Athletica, LLC, the copyright case now pending before the U.S. Supreme Court.