The Lengthy, Gradual Street to Defending Fashions by Copyright

The Long, Slow Road to Protecting Fashions by Copyright

The first copyright law was promptly enacted in 1790, just over a year after the ratification (by quill pen) of the constitution that allowed Congress to do so. It has only been comprehensively revised four times since then. The current version, which came into effect in 1978, is charmingly out of date despite heavily advertised patchwork updates. That has left much of the modernization of scholarship, skill, and occasionally the preferences and fantasies of a federal judiciary tasked with applying current copyright law to things that were unknown when it was passed, like smartphones, the internet, and something mine 12 -year-old says, goes by the name TikTok.

The change was so rapid that when the first modern case on whether and to what extent fashion could be protected by copyright reached a federal appeals court, the opinion began with: "This case is on the verge of copyright". Law. "Kieselstein-Cord v. Accessories by Pearl, 632 F.2d 989 (2nd Cir. 1980). The question raised by the predecessor of my law firm on behalf of the plaintiff, the jeweler Barry Kieselstein-Cord, the US Court of Appeals for the Second Circuit was whether the buckle trim on two models of its luxury beltline was copyrighted. From a copyright point of view, the question was whether these decorative elements could be conceptually separated from the functional elements, even if they were in a single, molded piece of precious metal The court considered this possible. "We see conceptually separable sculptural elements in the appellant's belt buckles, as apparently also the straps of the buckles, which she used as an ornament for body parts other than the waist." 632 F.2d 993.


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