Fashion's Function in Intellectual Property Law

Christopher Buccafusco* & Jeanne C. Fromer**

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 robust account of fashion’s function. It argues that aspects of garment designs are functional not only when they affect the physical or technological performance of a garment but also when they affect the perception of the wearer’s body. Generally, clothes are not designed or chosen simply to look good. They are also characteristically designed or chosen to look good on. This approach clarifies the appropriate treatment of fashion design in intellectual property, and it exposes the conceptual limitations of the Supreme Court’s recent copyright decision in Star Athletica, L.L.C. v. Varsity Brands, Inc.

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© 2017 Christopher Buccafusco & Jeanne C. Fromer. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor of Law, Director of the Intellectual Property and Information Law Program, Benjamin N. Cardozo School of Law, Yeshiva University.

**Professor of Law, New York University School of Law; Co-Director, Engelberg Center on Innovation Law & Policy. This Article is the basis for an amicus brief filed by the authors in a recent U.S. Supreme Court case on the copyrightability of cheerleading uniform designs. See Brief of Professors Christopher Buccafusco and Jeanne Fromer as Amici Curiae in Support of Petitioner, Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017) (No. 15-866), 2016 WL 3971299. The brief benefited greatly from the counsel of Meir Feder and Matthew J. Silveira. The authors are grateful to Amy Adler, Arnaud Ajdler, Barton Beebe, John Bronsteen, Carys Craig, Joseph Fishman, Scott Hemphill, Sonia Katyal, Barbara Kolsun, Mark Lemley, Jonathan Masur, Mark McKenna, Kal Raustiala, Pamela Samuelson, Christopher Sprigman, and Rebecca Tushnet, and participants at the Loyola University Chicago Faculty Workshop, University of Pennsylvania Law School Second Copyright Scholarship Roundtable, and 2017 Works-in-Progress in Intellectual Property Colloquium for their useful and expressive comments. The authors thank Stuart Anello, Mala Chatterjee, Claire Leb´ e, Giovanna Marchese, and Aleksandra Sitnick for excellent research assistance. Jeanne Fromer also gratefully acknowledges support from the Filomen D’Agostino and Max E. Greenberg Research Fund. A color version of this Article is available at www.ndlawreview.org.