Copyright Infringement Suit Against Supermodel Gigi Hadid Dismisssed

Judge Pamela K. Chen from the Eastern District Court of New York dismissed on July 18 a copyright infringement suit filed by XClusive-Lee, Inc. against supermodel Gigi Hadid, claiming that a picture she posted on her Instagram account was infringing.

Hadid’s Instagram account currently has almost 49 million followers, interested in viewing family pictures, fashion magazines cover featuring Hadid, fashion shoots and fashion photographs. Hadid posted in October 2018 a cropped version of a photograph of her taken the day before by a paparazzi outside Vogue’s Force of Fashion conference, where Hadid was part of a panel. 

The original version of the photograph showed Defendant wearing a denim jacket and shorts, a small handbag, high heels, jewelry and make up, smiling at the camera in an outdoor urban setting, probably outside the New York City studio where the conference took place. 

The photo posted by Hadid on social media was cropped mid-thigh. She added as comment:”all smiles post #ForceOfFashionpanel @voguemagazine.wearing #messikabygigihadid mini-cuffs and mono earing”, referring to a line of jewelry bearing her name which is sold by a French jeweler.  The “mono earrings”referred to in the post retail at $5,710. 

Xclusive-Lee, Inc., the company which owns the copyright to this photograph, filed a copyright infringement suit against Hadid in January 2019, claiming Hadid “copied and posted Copyrighted Photograph to Hadid’s Instagram account without license or permission from Xclusive-Lee.” It claimed that it was entitled to statutory damages, including any profits realized by Hadid attributable to the infringement, pursuant to 17 U.S.C. § 504. 

As a reminder, a work is protected by copyright, if it is fixed in a tangible medium and if it is original enough, even if it is not registered. However, a registration is required if filing a copyright infringement suit, and the Supreme Court recently held in Fourth Estate Public Benefit Corp. v. Wall-Street. Com LLC  that § 411(a) of the Copyright Act requires that copyright registration occurs “only when the Copyright Office grants registration” (at 888).

At the time of filing the suit, Plaintiff had applied for a copyright in the photograph, but had not been granted registration. Plaintiff argued that it had filed the copyright infringement suit before the Fourth Estate decision, but the EDNY rejected the argument as the Court cannot decline applying a Supreme Court decision “merely because the Supreme Court decision was issued after the filing of the compliant at issue in this case.”

 

The case was dismissed because the photograph was not registered with the Copyright Office.

That said, posting a photograph protected by copyright on Instragram without permission is copyright infringement. The Complaint noted that Hadid’s Instagram account featured several examples of “uncredited photographs of Hadid in public, at press events, or on the runway” and that “[m]ost if not all of these photographs were posted by Hadid without license or permission from the copyright holder.” 

Could it be fair use? Hadid may have used this photograph in order to contribute to the promotion of her jewelry line. Therefore, the character of the use, one of the four fair use factors, may have been for commercial gain, not for the sake of commenting or news reporting for the Vogue conference.

The second factor, the nature of the work, would probably be in Hadid’s favor, as it is not very creative. Hadid did not use all of the work, but cropped it, but she nevertheless substantially used the work, and so the third factor could have been in Plaintiff’s favor as well. The fourth factor, the economic effect on the value of the work, measures the effect of the use on the market. The picture could be licensed to be used on her Instagram account in order to promote a commercial line, and so it is possible that the fourth factor would have been in Plaintiff’s favor. 

It could it be argued that this particular photograph was not protected by copyright, as a work must be original enough to be protected. The photo was taken in the streets of New York, and must have been taken quickly, thus leaving little time for the photographer to make choices. Hadid deftly takes the pose, and it can be argued that it is her professional experience which contributed to the picture being original, unless the pose was directed by the photographer.

If a copyright registration had been granted before filing the case, the suit would likely not have been dismissed, as fair use is fact-based and thus is unlikely to be decided when granting a motion to dismiss.

However, if a copyright registration is mandatory for filing a copyright infringement suit, the Copyright Office may start to examine more closely whether a particular work is indeed original enough to be protected by copyright…

Take-away: Plaintiff must have a valid copyright registration before filing a copyright infringement suit.  

Photographer Claims Versace Removed CMI in Instagram Post of Jennifer Lopez

Photographer Robert Barbera has just filed a copyright infringement suit against Versace USA in the Southern District of New York, claiming that the fashion company did not have the right to publish, on its Instagram account, a photograph of Jennifer Lopez wearing Versace [see here]. [This is the second time in a row I am mentioning J-Lo in a blog post…]

Barbera registered the photograph with the Copyright Office. He did not license it to Versace.

Versace’s Instagram account is used to promote the brand and features many pictures of products and models, presumably taken as part of the company’s marketing and public relations strategy. The account is obviously used as a promotional tool. 

Is Versace in hot cappuccino? 

Copyright Management Information and Moral Rights  

Barbera claims copyright infringement and also alleges that Versace “intentionally and knowingly removed copyright management information identifying Plaintiff as the photographer of the Photograph,” thus violating 17 U.S.C. § 1202(b), which forbids to intentionally remove or alter any copyright management information without authorization of the copyright owner.

Copyright management information (CMI) includes, under Section 1202, the “title and other information identifying the work, including the information set forth on a notice of copyright… [t]he name of, and other identifying information about, the author of a work [and] [t]he name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.”

This is an interesting claim as the Copyright Office has just published its study of attribution and integrity rights in the United States. It addresses the issue of CMI and notes (p.86) that “[i]t is common practice in the digital world for CMI to be stripped from works, disconnecting a work from its authorship and ownership information” and further notes that the provisions of section 1202 “provide a form of quasi-moral rights protection by effectively preserving the names of authors, owners, and other creators in connection with their works.”

In our case, Plaintiff claims that Versace removed the CMI “intentionally, knowingly and with the intent to induce, enable, facilitate, or conceal their infringement of Plaintiff’s copyright in the Photograph. Versace also knew, or should have known, that such falsification, alteration and/or removal of said copyright management information would induce, enable, facilitate, or conceal their infringement of Plaintiff’s copyright in the Photograph.”

Could First Amendment be a Defense?

What about originality? The photograph has been registered and thus was deemed original enough to be protected by copyright. Yet, the pose, the angle, the light, are all quite mundane. What is original in the picture is the striking pattern of the Versace outfit worn by Miss Lopez.

While fashion designs are not protected by copyright in the US, with a few rare exceptions, patterns are protected and the one adorning the cat suit outfit featured in the allegedly infringing photograph is certainly original enough to be protected by copyright. However, Versace could not claim infringement as the picture is protected by the First Amendment: it was taken at a public event, the 2018 MTV Video Music Awards, and Versace used #VMAs as a hashtag. Could posting the picture on its corporate account be protected by the First Amendment? It certainly could be argued.

What about J.Lo.? By thus appearing in the Versace account, dressed in a Versace outfit, her likeness is used for commercial purpose. If this use is unauthorized, she could file a right of publicity suit. However, Versace could then also use the First Amendment as a defense.

However, it is possible, even likely, that the famous singer and actress has an agreement with Versace and that therefore the use of her likeness is authorized. She is one of the #Versacecelebrities, another hashtag used in the post, and has been wearing the brand for years, making headlines sometimes doing so. She was recently nominated CFDA's 2019 Fashion Icon. I won’t write about her in my next blog post. 

Image is courtesy of Flickr user irene. under a CC BY-ND 2.0 license. 

Vignelli Estate Claims Former Employee Had No Right to Publish Book about Famous Designer

The estate of Lella and Massimo Vignelli, represented by their daughter Valentina Vignelli, and Vignelli Designs, which hold the intellectual property rights in the Vignellis’designs, have filed a copyright and trademark infringement suit in the Southern District of New York against publishers Rizzoli and Mondadori, and Beatriz Cifuentes, a former employee of the Vignellis.

The case is The Estate of Massimo and Elena Vignelli et al v. Rizzoli International Publications, Inc. et al, No 1:19-cv-01584.

Defendants are the publishers and the author of a book published last October, which allegedly used without permission 102 original sketches made by Massimo Vignelli and misrepresented that the book was co-designed by Massimo Vignelli and is endorsed by the Vignelli Estate.

Lella and Massimo Vignelli

Lella and Massimo Vignelli’s designs are known by New York subway riders as the couple designed the now iconic subway signage. The map designed in 1972 is no longer in use, as many riders complained it was difficult to understand, but the train numbers of the lines are still in use. The Vignellis also designed Bloomingdale’s logo and its brown paper shopping bag. Some of their works are part of the MoMA collections.  

They worked together in New York until Massimo Vignelli’s death in 2014. Lella Vignelli died two years later. Their estate is now handling their intellectual property rights.

The 1990 book

Massimo Vignelli often designed books and even wrote a book about the topic, “The Vignelli Cannon.” In 1990, he designed a book published by Rizzoli, “design:Vignelli” and also designed the logo on the cover. Plaintiff claims that this logo “became the distinctive trade dress of the VIGNELLI brand.” In any case, Massimo Vignelli retained the intellectual property rights in it.

The book is registered with the U.S. Copyright Office as a compilation of the texts and photos and contains testimonies about the Vignellis’ work from various writers and photographers. These contributors retained their own rights.

The 2018 book

Beatriz Cifuentes joined Vignelli Associates in 2004 and worked there as a graphic designer. After Lella Vignelli died, and according to the couple’s wishes, the Vignellis’ professional artifacts and a portion of their personal artifacts were sent to the Vignelli Archives.

According to the complaint, the Vignellis’ children found out at that time that Beatriz Cifuentes had kept personal property belonging to Massimo Vignelli that needed to be returned to the Vignelli Archive, including some sketches, which had not yet been published, but which were published in the 2018 book.

Beatriz Cifuentes wrote in the introduction to the 2018 book “on his death bed, Massimo [Vignelli] made [her] promise [she] would finish the book.” However, according to the Complaint, Massimo Vignelli’s will does have a provision about the book.

The copyright infringement claims

The Complaint alleges that permission was not sought to use material for this book, and that Defendants had denied their requests to remove Massimo Vignelli’s name from the design credit, to include an “erratum slip” and to make sure that the press releases and promotional material were corrected.

It also alleges that Defendants reproduced without permission works authored by Massimo Vignelli, and also reproduced essays and photographs of third parties without their permission [these third parties are not parties to this suit, at least not yet. This is a classic copyright infringement claim.

The 1990 book is registered as a compilation, which are protectable by copyright. The Copyright Act defines them as being “formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” However, as explained by the Copyright Office in 2012, such compilation must result in one or more of the congressionally-established categories of authorship to be registered.  This is the case here, as the book is a literary work and also features graphic works.

Plaintiffs also allege that “Defendants prepared a compilation using unpublished works of Massimo Vignelli that were obtained without Plaintiffs’ authorization and then published by Defendants for the first time with the release of the 2018 Book on October 23, 2018.”

Unpublished works can be protected by copyright. Nevertheless, it is the author who has the exclusive right to publicly display the work. Beatriz Cifuentes claims that Massimo Vignelli wanted her to publish his works. This will be important to prove as a defense to the suit. Defendants could still claim fair use, whether permission to publish was granted or not. However, the Supreme Court explained in 1985 that the courts are less likely to find fair use if the work was unpublished, Harper & Row Publishers, Inc. v. Nation Enters. As a reminder, U.S. copyright law provides a very limited moral right to visual artists. Italian law, however, provides such rights, and it will be interesting to see if Plaintiffs will try to access it.

Plaintiffs are asking the court, inter alia, to permanently enjoin Defendants from further copying, marketing, publishing, selling, making derivative works, or otherwise commercially exploiting the works and the 2018 book.

The Defendants may now choose to defend themselves in court, or to settle.

Photo is courtesy of Flickr user Jonathan Wilsson under a CC BY-NC 2.0 license.

Big Freedia, Bouncing, and Copyright

Freddie Ross, Jr., aka Big Freedia, aka the Queen of Bounce, filed a copyright infringement suit last week against Wilberto Dejarnetti in the Eastern District court of Louisiana. The case is Ross v. Dejarnetti, 2:18-cv-11277. 

According to the complaint, Plaintiff met Defendant in 2014 and hired him to help with staging and choreographing Plaintiff’s performances. Plaintiff and his dancers worked with Defendant to create new stage choreography for several songs, including “Shake Session Medley” “Explode,” and “Best Beeleevah” (the Choreographic Works).

Plaintiff stopped working with Defendant in late 2017. Defendant then asked Plaintiff to credit him as a co-author and producer of several songs (the Musical Works), and also to pay him a monthly fee of $500 to use the Choreographic Works.

Failure to find an amicable solution led to the filing of this copyright infringement suit.

Joint authorship

Plaintiff is seeking a declaration from the court of his rights in the musical Works, arguing that Defendant’s “mere presence in the recording studio during the creation of the Musical Works is not sufficient to confer authorship rights,” that he had not made “any copyrightable contributions to the Musical Works and [that] the true creators of the Musical Works never intended [Defendant] to be a joint author. “

As we do not know yet what Defendant’s arguments are, it is difficult to comment beyond an explanation of what is joint authorship under U.S. copyright law.

Section 201(a) of the Copyright Act explains that the authors of a joint work co-own the copyright in the work and Section 101 of the Copyright Act defines a joint work as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”

So the crux of the issue is whether Plaintiff and Defendant’s contributions intended their participation in creating the songs to be merged into a whole.

If the two parties are indeed joint authors, then either of them needs the permission of the other to exploit the work, unless they would have agreed differently in writing. However, the written consent of all the joint authors is needed when granting an exclusive license.

In our case, Big Freedia is arguing that Defendant did not make any copyrightable contributions to the songs. He could well have made some contributions, but the argument is that theywere not original enough to be protected by copyright. Indeed, mere ideas and concepts are not copyrightable, and this argument is often used when denying joint authorship.

Authorship is generally a question of fact for the jury, but the parties will probably settle before that phase of the trial and so we may never know.

Copyright and choreographic works

Plaintiff states however that Plaintiff and Defendant are joint authors of the Choreographic Works, as their respective contributions “were merged into inseparable or interdependent parts of a unitary whole.”

Choreographic works can be protected by copyright if they are fixed, for instance, by a video recording, or by a written and precise notation. But the choreography must be original enough to be protected. It is surprising that Plaintiff states in the complaint that the Choreographic Works “were largely based on and derivative of traditional “bounce” dance movements and other routines [Plaintiff] and his dancers had been employing for years.” Plaintiff seems thus to deny the moves were original enough to be protected by copyright…

The complaint alleges that Defendant is asking Plaintiff to stop using the Choreographic Works claiming that he is their sole author. Plaintiff is asking the court to find that they are jointly authors, or, alternatively, to rule that Plaintiff can use these choreographies without compensation through an implied license.

An implied license can be granted without knowledge. For instance, the Ninth Circuit explained in Effects Associates, Inc. v. Cohen that a plaintiff which had “created a work at defendant's request and handed it over, intending that defendant copy and distribute it had thus impliedly granted nonexclusive licenses to [the defendant].” In Hunn v. Dan Wilson Homes, Inc, the Fifth Circuit Court of Appeals found that Plaintiff in a copyright infringement suit had created an implied nonexclusive license when he had delivered, through his agent, the plans for the four custom homes without any "written or orally communicated restrictions about limits on [Defendant’s] ability to use the delivered drawings."

This case is yet another example of why it is good practice for an artist to sign agreements with every single person who is collaborating with him or her.

Looking Further Under the Airbrushed Hoodie

You may have read on this blog a few weeks ago that Balenciaga America is being sued in the Southern District of New York for having allegedly copied the designs of a New York souvenir manufacturer.

Defendant, Balenciaga USA, had allegedly featured Plaintiff’s designs, a stylized New York City skyline, on a hoodie, a tote bag, pouches and skirts. These luxury models had been designed and produced in France by Balenciaga for its 2017 ‘Balenciaga NYC Tourist Collection,’ whereas Plaintiff’s goods are sold in souvenir shops and airports around New York. 

The case is following its course, and Balenciaga America moved last month to oppose Plaintiff’s motion for a preliminary injunction and an order of seizure. Plaintiff claims that Balenciaga America will be transferring the allegedly infringing merchandise out of the United States and has requested an injunction from the court.

The French fashion house detailed its arguments in a memorandum filed on October 18. It claims that it is holding the 36 products at stake in inventory in the U.S., with no intention to export them, and that the preliminary motion is thus unnecessary. It then goes on presenting its defense to the copyright infringement claim.

The legal standard for preliminary injunction

Section 502 of the Copyright Act gives courts the power to grant temporary and final injunctions in copyright infringement suits.

Before the eBay v. MercExchange Supreme Court patent case in 2006, plaintiffs did not have to show irreparable harm to be awarded injunctive relief, but only needed to establish the likelihood of success of the lawsuit. That changed after eBay v. MercExchange, as the Supreme Court held that a Plaintiff seeking a permanent injunction must show he has suffered an irreparable injury. The Supreme Court further explained in Winter v. Natural Resources Defense Council, Inc. that a plaintiff seeking a preliminary injunction must establish: (1) that he is likely to succeed on the merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tip in his favors, and (4) that an injunction is in the public interest.

Plaintiff claims that transferring the products at stake outside of the country would make it more difficult to recover damages for illegal overseas sales. Defendant claims Plaintiff has not showed irreparable harm, and it was merely the importer of the goods in the U.S.  

Defendant quotes Music Sales Ltd. V. Charles Dumont & Son, a 2009 case from the District Court of New Jersey to posit that exporting goods to the U.S. is not infringement under the Copyright Act, unless a predicate act has occurred in the U.S. that is itself infringement under the Copyright Act. Defendant also cited a Second Circuit case, Update Art Inc. v. Modiin Publ’g Ltd., where the court noted that it is “well established that copyright laws generally do not have extraterritorial application.”

Plaintiff does not quote the next phrase in Update Art, which states the exception to the rule, ”when the type of infringement permits further reproduction abroad — such as the unauthorized manufacture of copyrighted material in the United States.” This does not appear, however, to be the case here, as the allegedly infringing designs have been originally designed and produced in France. Selling them in the U.S. does facilitate further reproduction abroad, especially since Defendant wisely pulled these products from the stores.

The copyright infringement defenses

Balenciaga America claims that Plaintiff’s original design is a mere “collage of some of the most well-known landmarks in the New York City skyline” and are not protected by copyright.

These “unprotectible elements” are arranged in a different way than the way they have been arranged by Plaintiff. Balenciaga admits that there may be some similarity in the “look and feel “of both works, but that is because they are both done “in a style that has long been associated with hot rods, graffiti art, and hip hop, a style that is decidedly not original to Plaintiff.” Indeed, hot rod cars are often airbrushed, and both designs mimic this technique. 

As the works at stake contain both protectable and non-protectable elements, Defendant argue that the court must not use the “ordinary observer test,”used by the Second Circuit courts to assess copyright infringement, which asks “whether the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal the same,” but the “discerning ordinary observer test.” This test dos not call for “a piecemeal comparison of each of the protectible elements with its putative imitation, but rather a careful assessment of the "total concept and feel" of the works at issue, after the non-protectible elements have been eliminated from consideration,” Silberstein v. Fox Entertainment Group, Inc.

Defendant argues that both style of the designs are similar only as they “both pay homage to hot rod and graffiti-style airbrushed styles, which belongs to no one (and everyone).” This argument is a bit farfetched, as validating it would mean that no graffiti artists can claim copyright protection for his or her work as the style belongs to no one.

For Defendants, the New York City landmarks must necessarily be used to evoke the city’s skyline and are thus scènes à faire, as “[d]epictions of New York City landmarks and the words “New York City” are stock images and phrases standard in tourist souvenirs.”

Defendant claimed that it arranged these unprotectible elements in a different way than Plaintiff did in its own works, and that when these elements are filtered out the only copyrightable element left is the arrangement of the building, which is different in Plaintiff’s works and Defendant’s works.  

Plaintiff argued in its reply that Balenciaga “had offered no evidence of unoriginality,” quoting Yurman Design Inc. v. PAJ Inc., where the Second Circuit wrote that "[c]opyright law may protect a combination of elements that are unoriginal in themselves.”

Indeed, as explained by the Supreme Court in Feist, “[f]actual compilations… may possess the requisite originality [to be protected by copyright]. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original [to be protected by copyright].”

 Fair use

The first of the four fair use factors of Section 107 of the Copyright Act, the purpose and the character of the use, focuses on whether the use is transformative.

Balenciaga America claims that the designs are transformative, as they offer “as subversive, tongue-in-cheek commentary on fusty notions of propriety in fashion, and emphasizing the beauty in the ordinary.” It explains that the design were inspired by ordinary objects, comparing the process to Marcel Duchamp using an urinal to create Fountain and Andy Warhol painting cans of Campbell soup (he even declared tomato to be his favorite flavor, although this has been debunked).

Defendant argues that the second factor, whether the protected work is factual or expressive, also plays in its favor as Plaintiff’s work merely depicts New York’s trademark. The third factor should be in its favor as well as it only tool, if indeed it took anything, unprotectible elements. As for the fourth factor, the effect on the potential market, Defendant notes that “it is not unreasonable to think that Plaintiff’s sales have increased from the publicity around this case.”

I must admit that Plaintiff’s products must be on every fashionable copyright attorney or scholar’s wish list now. See you at JFK’s gift shop!

Image of the Empire State Building, U.S. Government Work.

Poster from the Hot Rod Girl movie (1956).

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.