Because clothes are ‘useful articles,’ strong copyright protections are not available to fashion designers. Essentially, so long as parts that are trademarked are not copied as well, cheap clothing retail stores can go on making knock offs of designer labels all they want. And by my reckoning, that’s as it should be — I don’t think the case can be made that we suffer from a shortage of designer label fashion lines, given how every celebrity and their dog have one, so there are no welfare gains to be had from allowing fashion to be copyrighted.

But over at Counterfeit Chic, there’s an interesting suggestion made that, even if you can’t infringe a copyright by making a knock off of a dress, making that same dress for a doll might be infringing.

These Michelle Obama dolls ‘action figures’ feature dress designs of some apparently well known labels:

And what of the designers whose dresses have made fashion history? Paradoxically, if Feinberg had reproduced the dresses themselves and sold them in a Brooklyn boutique, their original designers would have had little or no claim under U.S. law. However, the same may not be true of the 6-inch versions.

Let’s consider each dress individually. Apart from the purple Pinto, which is probably too simple to trigger any sort of protection (belt sold separately), the doll-maker may run a slight risk of playing (court)house with his creations. Either Donna Ricco herself or whoever created the black-and-white fabric pattern might have a copyright claim, depending on how closely Feinberg copied the print. And if either Narciso or Donna created a sketch of his or her respective dress before stitching it, the drawing (though not the dress) would be subject to copyright — making the doll theoretically an infringing derivative work.

As Counterfeit Chic points out, this raises another problem. An infringement claim requires proof of copying — but the copying here would almost certainly have been of Michelle Obama’s actual dresses, not the copyrightable sketches. Proof of copying can also be shown by demonstrating that the alleged infringer had access to the original work and substantial similarity, but would a copy of a non-copyrightable item that is itself a non-infringing depiction of a copyrightable work count as access?

-Susan