What is rarer than the unicorn? A dress protected by copyright?

Roy Halston, the creator of the Halston brand, is remembered by fashion historians for his use of ultrasuede fabric, a soft manmade fabric imitating suede which could be machine-washed, and for his simple, yet sophisticated designs. While his main line was designed and priced to attract high-income customers, he also designed a line for mass-retailer J.C. Penney. Roy Halston lost control of his brand before dying in 1990, but the Halston Heritage brand has made a comeback in recent years and still sells clothes and accessories, some of which are somewhat reminiscent of the original designs. 

On October 15, the Halston company filed a copyright infringement suit in the central district of California against G-III, which is the exclusive licensor for Calvin Klein. Defendant produces and sells women’s clothes and accessories under the Calvin Klein trademark.

At issue are three Halston dresses which were allegedly copied by Defendant. 

Plaintiff's Design A

First there is “Subject Design A” dress. The top of the dress is a simple sleeveless shift, with a round neckline, flaring asymmetrically below the waist, and revealing a bottom dress in contrasting color. The company has applied to register its copyright (good luck).

Defendant sold a dress which Plaintiff found to be a copy of Subject Design A, arguing in the complaint that “it is apparent that the elements, materials, place, movement, centering, composition, colors, arrangement, overlay, appearance and structure of the design [sic] are substantially and confusingly similar, if not identical.”

Plaintiff manufactured and sold another dress, ‘Subject Design B’, a belted sleeveless dress, with a round neckline, gently flaring out asymmetrically, revealing the lower part of the left thigh of the wearer and its contrasting lining. Defendant also manufactured and sold a belted sleeveless, with a round neckline gently flaring out asymmetrically, revealing the lower part of the left thigh of the wearer and its contrasting lining. Plaintiff does not indicate in the complaint that it is in the process of registering the copyright for Subject Design B, but repeats the substantially and confusingly similar claim.

Defendant's dress

There is also ‘Subject Design C,’a full length sleeveless dress with a deep V neck and double straps which opens high on the right thigh of the wearer. Defendant also manufactured and sold a full length dress with a deep V neck and double straps. However, Defendant’s dress does not have a slit, but a mermaid shape. However, Plaintiff also claims the two designs are “substantially similar, if not identical.”

Plaintiff is of course aware that a dress is a useful article and, as such, is not protected by copyright. In order to be able to claim copyright protection for Design A, Plaintiff argues that:

“[Design A] [w]ould qualify as a protectable pictorial, graphic, or sculptural works- either on its own or fixed in some other tangible medium of expression, despite having some utilitarian function, which is to facilitate conduct associated with the 70’s an area which Roy Halston Frowick is strongly identified [sic], and as described by Erica Jong as “the purest thing there is. And it is rarer than the unicorn.” Erica Jong, Fear of Flying (1973). See Star Athletica, L.L.C. v. Varsity Brands., 580 U.S.___, 137 S. Ct. 1002 (2017).”

The Supreme Court held that In Star Athletica that a feature incorporated into the design of a useful article can be protected by copyright if (1) it can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) if it would qualify as a protectable pictorial, graphic, or sculptural work, either on its own or fixed in some other tangible medium of expression, if it were imagined separately from the useful article.

The feature incorporated in the design of the useful dress is “an overlay to express movement, affixing fabric in a manner to affect the appearance, weight and asymmetrical flow of the design, including but not limited to incorporation of a gusset and tack in the flounce, and increasing the downward visual consistency and depth of the two colors used.”

Plaintiff seems to argue that the function of this feature, which can be protected as a work of art, is “to facilitate conduct associated with the 70’s an area which Roy Halston Frowick is strongly identified [sic], and as described by Erica Jong as “the purest thing there is. And it is rarer than the unicorn.”

I was puzzled by the Erica Jong reference and wondered if Erica Jong was referring in this quote to the 70’s or to Halston. Actually, she was referring to …well… Here is the quote: “The zipless fuck is the purest thing there is. And it is rarer than the unicorn.” I was still puzzled after finding the quote and I am looking forward to reading Defendant’s motion or answer to the complaint to find out what its attorneys made out of it.