From Playroom to Courtroom: Doll Clothing's Role in Redefining Design Copyrights

Tre’Vontaye Toby∗

The article "From Playroom to Courtroom: Doll Clothing's Role in Redefining Design
Copyrights" explores the intersection of fashion design and copyright law, particularly focusing
on the legal nuances of doll clothing as a case study. It discusses the economic impact of the
fashion industry, the challenges of copyright protection for designs, and the legal precedents
related to copyrightability of doll clothing. The paper critically analyzes the criteria for copyright
eligibility, considering the legal distinction between utility and artistic expression, and proposes
a novel approach to secure copyright for fashion designs by drawing parallels with doll clothing.

Introduction

Garments have historically transcended their mere functional role, often embodying
individual expression, artistic creativity, aesthetic appeal, and even potent political symbolism.1
This is encapsulated in the assertion that “one of the most influential phenomena of the modern
world [is that] fashion reflects and…has a profound role in shaping human culture.”2 This sector's
influence is palpably reflected in its substantial economic footprint. As of 2022, the global fashion
industry was appraised at approximately $1.7 trillion, with the United States contributing a
significant $369.39 billion.3 Projections from the Consumer Market Outlook suggest an escalation
in the global industry's worth, reaching nearly 2 trillion U.S. dollars by 2027.4

∗ Graduate Student pursuing an MSc in Fashion, Design, and Luxury Management at Grenoble Ecole
de Management (expected graduation in 2025), and holding a B.A. in Philosophy, Politics, and Law from
Emory University (20OX 23C). This article represents a significant milestone in my academic journey. This
paper originated in the fall semester of my final year at Emory, inspired by a "Philosophy of Law" class. While
the bulk of this work was completed during my undergraduate tenure, the revision process extended over six
months post-graduation. Without formal legal education, I navigated this challenge independently, with
significant revisions and refinements. I extend my gratitude to Chat GPT, which played a crucial role in
refining and strengthening my arguments. While I lack formal legal education, this endeavor underscores the
potential of leveraging AI as a tool to enhance legal argumentation, embodying my commitment to academic
rigor and the pursuit of knowledge in the intersection of law and design.
1
Monseau, S. (2023). Protecting Creativity in Fashion Design: US Laws, EU Design Rights, and Other
Dimensions of Protection (1st ed.). Routledge. https://doi.org/10.4324/9781003091400
2
Palandri, Lucrezia. 2020. “Fashion as Art: Rights and Remedies in the Age of Social Media.” Laws 9 (1):
1–9. https://doi.org/10.3390/laws9010009.
3
Zippia, "28 Dazzling Fashion Industry Statistics [2023]: How Much Is The Fashion Industry Worth" (Oct.
3, 2022), https://www.zippia.com/advice/fashion-industry-statistics/.
4
Statista, Apparel - Worldwide (January 22, 2023),
https://www.statista.com/outlook/cmo/apparel/worldwide.

1
 The prevalence of imitations, such as dupes5, knockoffs6, and counterfeit items7, is a critical
issue plaguing the fashion industry.8 The impact of such activities becomes even more concerning
considering the employment statistics in this sector. With over 30,000 individuals engaged in the
fashion design industry in the United States as of 2020,9 the insufficient copyright protection
afforded to their garment designs is a notable legal oversight. This lack of robust intellectual
property rights not only undermines the creative labor of designers but also potentially jeopardizes
the economic vitality of the fashion industry, a sector pivotal in shaping both culture and economy
on a global scale. However, this has not been without a fight, as the fashion industry has been
vying for protection of its designs to no avail.10

In the United States, there is a growing discourse on the inadequacy of current copyright
laws in effectively safeguarding the interests of creative professionals. This sentiment is echoed
by District Judge Weinstein in his dissenting opinion in the case of Kieselstein-Cord v. Accessories
by Pearl. Judge Weinstein addresses the issue of commercial entities exploiting the works of
talented designers for profit, without due compensation or acknowledgment:

“The commercial pirates of the marketplace to appropriate for their

own profit, without any cost to themselves, the works of talented
designers who enrich our lives with their intuition and skill. The
crass are rewarded, the artist who creates beauty is not. All of us are
offended by the flagrant copying of another's work. This is
regrettable.”11

5
A product that closely resembles or imitates the design, style, or appearance of a high-end or luxury
fashion item- typically a more affordable alternative that captures the essence or aesthetic of the original item.
6
A fashion item that is intentionally designed to closely mimic or copy the design, branding, or features of
a popular and often expensive fashion product- created to deceive consumers into believing that they are purchasing
the genuine or original item.
7
In the fashion industry, a "counterfeit" refers to a product that is intentionally produced to deceive
consumers by imitating a specific brand's design, logo, or overall appearance without authorization.
8
"Inside the Delirious Rise of ‘Superfake’ Handbag," The New York Times (May 4, 2023); "BoF Insights |
In the Age of BeReal, Gen-Z Says It’s Acceptable to Buy Fake Fashion," Business of Fashion (May 25, 2023);
“Why Luxury’s Counterfeit Problem Is Getting Worse," Business of Fashion (May 25, 2023); "The Pandemic Has
Created a ‘Perfect Storm’ for Counterfeits. Just Ask Louis Vuitton," Business of Fashion (May 25, 2023);” GEN Z
LOVES ITS LUXURY DUPES: MORE YOUNG PEOPLE ARE BUYING FAKES," Highsnobiety (May 25,
2023); "The RealReal Sold Me A $3,600 Fake; Here’s Why Counterfeits Slip Through Its Authentication Process,"
Forbes (May 25, 2023); "The Rich New York Women Who Love Their Fake Birkins: Among a certain set,
counterfeit luxury bags may be more popular than the real thing," The Cut (May 25, 2023); "Gen Z loves dupes. Is
this bad news for luxury fashion brands?," Vogue Business (May 25, 2023); ”In Gen Z’s world of ‘dupes,’ fake is
fabulous — until you try it on," The Washington Post (May 25, 2023);“To Knock Out Knockoffs, Knock Off
Knockoffs," The New York Times (May 25, 2023).
9
O’Connor, Claire. 2020. “Fashion Designers in the US.” 54149. IBIS World.
10
Katherine M. Olson, The Innovative Design Protection and Piracy Prevention Act: Re-Fashioning U.S.
Intellectual Property Law, 61 DePaul L. Rev. 725-755 (2012) (“Since 1914, Congress has considered more than
seventy bills that would grant some form of copyright protection to original fashion designs.”); Laura C. Marshall,
Note, Catwalk Copycats: Why Congress Should Adopt a Modified Version of the Design Piracy Prohibition Act, 14
J. INTELL. PROP. L. 305, 309 (2007) (“For decades, designers have sought shelter for their work in nearly all areas
of intellectual property law, including design patent, trademark, trade dress, and copyright. However, none of these
fields of law has provided complete protection.”).
11
Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989 (2d Cir. 1980)

2
 Despite recognizing the need for protection, Judge Weinstein maintains a clear stance on
the limitations of the judiciary in this realm. He acknowledges that while designers deserve some
form of protection, it is not within the purview of the courts to provide this. Instead, he defers to
higher authorities, stating, “Congress and the Supreme Court have answered in favor of commerce
and the masses rather than the artists, designers and the well-to-do. Any change must be left to
those higher authorities. The choices are legislative not judicial.”12

This perspective underscores a significant gap in the legal framework governing

intellectual property rights, particularly in the context of fashion design. It highlights the necessity
for legislative intervention to recalibrate the balance between fostering commercial interests and
protecting the creative and intellectual labor of designers. Judge Weinstein’s comments bring to
the forefront a crucial debate about the role of law in nurturing creativity and innovation, versus
its role in promoting commercial and economic interests. This ongoing dialogue is central to
shaping future policies and legal norms in the realm of copyright law.

The debate over the most effective legal strategy to secure copyright protection for garment
designs is complex, with some legal scholars suggesting the application of state laws to circumvent
federal copyright preemption.13 However, a more innovative and potentially impactful approach
might involve leveraging the judicial system, akin to the tactics used during the Civil Rights
Movement.14 This strategy would focus on using judicial precedents to bring about changes that
legislative bodies have contemplated but not yet enacted.15 This crux of this novel and creative
legal theory proposes to seek copyright protection for fashion designs by categorizing them
similarly to doll clothing rather than human clothing. The distinction between the two is significant
in legal terms, as demonstrated in the case of Boyds Collection v. Bearington Collection.16 In this
case, the court made a clear distinction, stating:

“[A doll’s clothing]… is not intended to cover embarrassing

anatomical aspects or to protect… [the doll]… from exterior
elements… It is intended… only to modify the appearance… to give
the doll a different ‘look and feel’ … Clothing on a bear replicates

12
Kieselstein-Cord
13
Lamb, Brittany.“The Federal Government's Hand-Me-Downs: The Possibility of Protecting Fashion at
the State Level.” Columbia Law Review, vol. 115, no. 1, 2015, pp. 127–64. JSTOR,
http://www.jstor.org/stable/43153768. Accessed 23 Jan. 2023.
14
The Civil Rights Movement, historically, was successful in achieving significant legislative and social
changes through the judicial system, often through landmark court cases: Brown v. Board of Education, 347 U.S.
483 (1954); Loving v. Virginia, 388 U.S. 1 (1967); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241
(1964). I suggest using similar tactics - essentially, pursuing change through the courts - to establish stronger
copyright protection.
15
The Innovative Design Protection and Piracy Prevention Act. (Pg 726) (“Since 1914, Congress has
considered more than seventy bull that would grant some form of copyright protection to original fashion designs”);
Charles Schumer, the current Senate Majority Leader since 2021, has introduced multiple Bills (S. 3728, 111th
Cong. (2d sess. 2010); S. 3523, 112th Cong. (2d sess. 2012)) to explicitly include fashion garments for copyright
protections.
16
Boyds Collection v. Bearington Collection, Inc.,360 F. Supp. 2d 655 (M.D. Pa. 2005)

3
 the form but not the function of clothing on a person. It does not
constitute a ‘useful article.’”17

Further support for this argument can be found in The Phillies v. Harrison/Erickson Inc.,
where the legal reasoning from Boyds Collection v. Bearington Collection received positive
treatment. 18 The court in this case acknowledged the nuanced legal status of mascot clothing,
noting: “clothing for a mascot falls into an ambiguous space: it is not clothing meant for a person,
per se, but it is also not clothing meant for a completely inanimate object.” Despite this ambiguity,
the court leaned towards assuming copyrightability for the mascot's clothing.19 Similarly, in the
landmark case of Mattel, Inc. v. MGA Entm’t, Inc, the court provided a pivotal elaboration on the
legal distinction between human and doll clothing.20 The court noted:

“Human clothing is considered utilitarian and unprotectable.

However, articles that are intended only to portray the appearance
of clothing are protectable. Dolls do not feel cold or worry about
modesty. The fashions they wear have no utilitarian function.”21

These distinctions form the cornerstone of a complex and nuanced legal debate regarding
copyright in the fashion industry. To further unravel this intricate issue, this paper embarks on an
in-depth analysis, employing a hypothetical scenario as a primary investigative tool. This scenario
will be examined through the lens of a textualist interpretation of law, seeking to understand how
a judge aligned with this jurisprudential philosophy might approach the facts of such a case. This
methodological approach aims to provide a comprehensive understanding of both the legal and
ethical dimensions surrounding the issue of copyright within this domain.

Given the burgeoning global value of the fashion industry and the escalating instances of
unauthorized reproductions, this exploration transcends academic interest and assumes critical

17
Boyds Collection v. Bearington Collection, Inc. (This ruling potentially extends to doll furniture, which
similarly lacks practical utility for dolls. Doll furniture, like doll clothes, serves primarily as decorative items or
props for play. Therefore, they might be copyrightable under U.S. law. The success of a copyright infringement
claim over designs scaled from doll size to human size is uncertain, hinging on various factors. Copyright law
generally safeguards the expression of an idea, not the idea itself. Scaling designs to human size could be argued as
creating a new, distinct work of authorship due to the substantial creative decisions and modifications required. If
the design remains identical apart from the size, it might be viewed as a derivative work, strengthening the original
copyright owner's infringement claim. Like our case I’ll be discussing, this complex issue intersects several aspects
of copyright law, including idea-expression distinction, transformative use, and derivative works, necessitating a
comprehensive legal analysis. While I will not address this issue in this article, it is an astute observation that I
believe was worthy of mentioning.)
18
The Phillies v. Harrison/Erickson Inc., No. 19-CV-7239 (VM) (SN), 2021 BL 485790, 2021 Us Dist
Lexis 243554 (S.D.N.Y. Aug. 10, 2021), Court Opinion
19
The Phillies (“In this view, then, the clothing items for the Phanatic could qualify as copyrightable
materials. The Supreme Court's recent decision in Star Athletica, L.L.C. v. Varsity Brands, Inc. confirms this view…
Assuming that The Phillies's uniform for the Phanatic is independently copyrightable, the Court next considers
whether The Phillies's uniform and team-related materials (the jersey, leggings, logo, and cap) were intended to be
part of the Phanatic.”)
20
Mattel, Inc. v. MGA Entm’t, Inc., 616 F.3d 904, 918 (9th Cir. 2010) (“Even if we were to defer to the
letter from the Copyright Office saying that doll clothing isn't protected, as MGA argues we should, the letter's
interpretation is obviously wrong.”)
21
Mattel, Inc. v. MGA Entm’t, Inc.

4
significance. In an era where the interplay between artistic innovation and commercial viability is
increasingly complex, this inquiry invites engagement in a multifaceted exploration of law,
creativity, and the dynamic sphere of fashion. This pursuit is pivotal in shaping future legal
frameworks to balance the interests of creators, consumers, and the industry at large.

Hypothetical Case

A. Case Background

Séfoi, a distinguished fashion conglomerate, has been grappling with persistent instances of
plagiarism, which have adversely affected its brands' revenues and reputations. In response, its
subsidiary, Diago, has introduced an innovative product line titled "Diago Doll." This collection
encompasses attire for dolls of various sizes, including those akin to human dimensions, as well
as miniature and oversized variants. Notably, these dolls feature mirrored faces, a design choice
emblematic of Séfoi's philosophy that human interactions mirror our internal psyche, thereby also
representing the brand's dedication to fostering individual expression and authenticity.

Diago employs a design methodology for doll clothing that mirrors its approach to human
fashion, prioritizing aesthetic appeal. Recognizing the potential for copyright protection of doll
attire, Diago has registered these designs as three-dimensional sculptures and computer-aided
design (CAD) renderings with the Copyright Office. To diversify its portfolio, Diago is exploring
the possibility of adapting doll clothing for human wear, positioning these garments as avant-garde
fashion choices for consumers. However, concerns about potential replication and infringement
have led to a cautious approach, with only a single design being released thus far.

In a strategic legal maneuver, Séfoi has instructed another subsidiary, Abba, to produce and
market a replica of this doll clothing design. This deliberate action is intended to provoke a
copyright infringement lawsuit within the federal judicial system. The ultimate objective of this
litigation strategy is to challenge unfavorable decisions through appeals, with the aspiration of
obtaining a favorable ruling or potentially escalating the matter to the United States Supreme
Court. This approach is aimed at setting a legal precedent that could reshape the landscape of
copyright law in the fashion industry.

B. What Makes a Valid-Copyright?

The foundational criterion for a claim of copyright infringement is the establishment of

"ownership of a valid copyright."22 According to the Copyright Act of 1976, the realm of
copyrightable material is delineated as “original works of authorship fixed in any tangible medium
of expression.”23 The definition of "works of authorship" encompasses a broad spectrum of
creative outputs, including "pictorial, graphic, and sculptural works."24

22
Rural Telephone Service v. Feist Publications, 957 F.2d 765 (10th Cir. 1992)
23
Pub. L. 94-553, title I, §101, Oct. 19, 1976, 90 Stat. 2544; Pub. L. 101-650, title VII, §703, Dec. 1, 1990,
104 Stat. 5133.
24
Id.

5
 This category, as per statutory definition, covers an array of artistic creations: "two-
dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and
art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including
architectural plans." 25 A work achieves the status of being "fixed" in a tangible medium of
expression when it is "embodied in a material object from which the work can be perceived,
reproduced, or otherwise communicated."26 Additionally, the Copyright Act articulates a specific
provision concerning the copyright eligibility of pictorial, graphic, or sculptural works that are
integrated into a "useful article." A useful article is defined as an item possessing an "intrinsic
utilitarian function that is not merely to portray the appearance of the article or to convey
information."27

In this context, the design of a useful article is deemed a protectable pictorial, graphic, or
sculptural work only to the degree that such a design embodies pictorial, graphic, or sculptural
attributes which are discernible as separate from, and capable of existing autonomously of, the
item's utilitarian elements.28 This nuanced distinction is pivotal in evaluating the copyrightability
of designs that merge artistic and functional attributes.

C. Legal Issues Under Consideration

1. Eligibility of Diago's Doll Clothing for Copyright Protection:

The core legal inquiry revolves around whether the doll clothing
designs created by Diago qualify for copyright protection as
original works of authorship and whether these designs
constitute "useful articles," potentially impacting the extent of
copyright protection available.

The defense challenges the plaintiff's position as potentially conflicting with §101 of the
Copyright Act, which mandates a separability analysis for any "pictorial, graphic, or sculptural
features" that are integrated into the "design of a useful article."29 In response, the plaintiff
maintains that, per established judicial precedent, doll clothing is not categorized as useful articles.
They posit that the term “intrinsic,” defined as "belonging naturally; essential," supports the
inference that wearing doll clothing is not essential for humans, even if the garments are of

25
Pub. L. 94-553, title I, §101, Oct. 19, 1976, 90 Stat. 2541; Pub. L. 96-517, §10(a), Dec. 12, 1980, 94 Stat.
3028; Pub. L. 100-568, §4(a)(1), Oct. 31, 1988, 102 Stat. 2854; Pub. L. 101- 650, title VI, §602, title VII, §702, Dec.
1, 1990, 104 Stat. 5128, 5133; Pub. L. 102-307, title I, §102(b)(2), June 26, 1992, 106 Stat. 266; Pub. L. 102-563,
§3(b), Oct. 28, 1992, 106 Stat. 4248; Pub. L. 104-39, §5(a), Nov. 1, 1995, 109 Stat. 348; Pub. L. 105-80, §12(a)(3),
Nov. 13, 1997, 111 Stat. 1534; Pub. L. 105-147, §2(a), Dec. 16, 1997, 111 Stat. 2678; Pub. L. 105-298, title II,
§205, Oct. 27, 1998, 112 Stat. 2833; Pub. L. 105-304, title I, §102(a), Oct. 28, 1998, 112 Stat. 2861; Pub. L. 106-44,
§1(g)(1), Aug. 5, 1999, 113 Stat. 222; Pub. L. 106-113, div. B, §1000(a)(9) [title I, §1011(d)], Nov. 29, 1999, 113
Stat. 1536, 1501A-544; Pub. L. 106-379, §2(a), Oct. 27, 2000, 114 Stat. 1444; Pub. L. 107-273, div. C, title III,
§13210(5), Nov. 2, 2002, 116 Stat. 1909; Pub. L. 108-419, §4, Nov. 30, 2004, 118 Stat. 2361; Pub. L. 109-9, title I,
§102(c), Apr. 27, 2005, 119 Stat. 220; Pub. L. 111-295, §6(a), Dec. 9, 2010, 124 Stat. 3181
26
Id.
27
Id.
28
Id.
29
Id.

6
comparable size to human clothing.30 The design of doll clothing, according to the plaintiff, is
primarily for dolls, with any human wearability being “incidental” rather than fundamental.31

The plaintiff argues that this obviates the necessity for a separability test. However, they
advance an additional, nuanced argument: having fulfilled the criteria for copyright acquisition,
they have lawfully reproduced, marketed, and sold these designs as copyrighted works. They
operated under the presumption of exclusive rights conferred by the Copyright Act.32 Nevertheless,
to address any remaining doubts, the plaintiff is prepared to demonstrate that, should the Court
deem these doll clothing designs as "useful articles," the designs would nonetheless satisfy the
separability test. This stance is purportedly aligned with the majority opinion in the landmark case
of Kieselstein-Cord v. Accessories by Pearl, Inc., thereby reinforcing their claim to copyright
protection for these creative works.33

The Plaintiff elaborates on their argument by invoking the precedent established in Mazer
v. Stein, highlighting its significance in broadening the ambit of copyright protection within the
United States to encompass creations that embody both aesthetic and functional elements.34 The
Court's determination in Mazer v. Stein explicitly affirms that artworks deemed as "useful articles"
retain eligibility for copyright protection, notwithstanding their functional utility.35

Furthermore, the Plaintiff references Star Athletica, L.L.C. v. Varsity Brands, Inc., which
refined the judicial methodology for conducting the separability test.36 According to this precedent,
a feature integrated within the design of a useful article qualifies for copyright protection solely
under two conditions: (1) the feature can be recognized as an autonomous two- or three-
dimensional artwork distinct from the useful article, and (2) it can be classified as a copyrightable

30
“Essential” meaning “absolutely necessary,” Oxford Language Dictionary (2023).
31
Incidental” meaning “accompanying but not a major part of something” or “liable to happen as a
consequence of,” Oxford Language Dictionary (2023).
32
Copyright Act, 17 U.S.C. § 106 (subject to §§ 107-122) (1976). ("Subject to sections
107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the
following: to reproduce the copyrighted work in copies or phonorecords; to prepare derivative works based upon the
copyrighted work; to distribute copies or phonorecords of the copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or lending.”).
33
Kieselstein-Cord v. Accessories By Pearl, Inc., 632 F.2d 989, 208 U.S.P.Q. 1 (2d Cir. 1980), Court
Opinion. The primary issue was whether Kieselstein-Cord's belt buckle designs were copyrightable under U.S. law,
hinging on whether the designs could be considered works of art, separate from their utilitarian function as belt
buckles.
34
Mazer v. Stein, 347 U.S. 201, 74 S. Ct. 460, 98 L. Ed. 630, 100 U.S.P.Q. 325 (1954), Court Opinion.
("We do hold that the patentability of the statuettes, fitted as lamps or unfitted, does not bar copyright as works of
art. Neither the Copyright Statute nor any other says that because a thing is patentable it may not be copyrighted. We
should not so hold.") ("Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given
only to the expression of the idea--not the idea itself. Thus, respondents may not exclude others from using statuettes
of human figures in table lamps; they may only prevent use of copies of their statuettes as such or as incorporated in
some other article.")
35
Mazer ("We find nothing in the copyright statute to support the argument that the intended use or use in
industry of an article eligible for copyright bars or invalidates its registration. We do not read such a limitation into
the copyright law.")
36
Star Athletica, LLC v. Varsity Brands, Inc., 580 U.S. 405, 137 S. Ct. 1002, 197 L. Ed. 2d 354, 122
U.S.P.Q.2d 1001, 85 U.S.L.W. 4139 (2017), Court Opinion

7
pictorial, graphic, or sculptural work in its own right or when envisaged apart from the useful
article it embellishes.37

The Supreme Court's ruling in Star Athletica, L.L.C. v. Varsity Brands, Inc. elucidated that
for the application of the separability test, the distinction between physical and conceptual
separability concerning the design and the useful article is not pertinent.38 Irrespective of the
utilitarian aspects of the doll's clothing design, its artistic components are deemed conceptually
distinct, rendering them eligible for copyright protection under this framework. The Plaintiff
underscores the imaginative aspect of engaging with life-sized dolls through dress-up and make-
believe activities, noting the conceivable desire of consumers to don the apparel designed for such
dolls, particularly when the dimensions of the doll and human coincide. This scenario, according
to the Plaintiff, accentuates the utilitarian aspect of the garment when worn by humans, challenging
the notion that the garment's design is inherently devoid of utilitarian function.39

To elucidate this point further, the Plaintiff introduces an analogy involving a

commonplace object: a knife, whose primary design and function is to cut. The inherent design of
the knife, characterized by its sharp edge, serves this primary purpose. The Plaintiff argues that
repurposing the knife as a makeshift screwdriver does not negate its fundamental cutting
capability, which remains intact irrespective of alternative uses. Drawing a parallel, the Plaintiff
contends that clothing designed for life-sized dolls, though intended to augment the doll's visual
appeal, embodies a specific, intrinsic goal. This goal, ingrained in the design of the doll's clothing,
does not inherently preclude the garments from possessing a utilitarian function when adapted for
human wear. Such adaptation does not alter the aesthetic purpose of the doll's clothing but rather
extends its utility, underscoring the design's capacity to serve dual purposes without compromising
its original intent.

The Plaintiff posits a scenario suggestive of dialetheia, wherein the garments in question
manifest both as useful and non-useful articles. To clarify this paradox and assert the principle of
conceptual separability, the argument is reframed: the clothing, when adorned on dolls, assumes a
non-utilitarian role, whereas its utility emerges only upon being worn by humans. This dualistic
nature, contingent on the garments' application, underscores their ability to transcend their
utilitarian aspect, albeit in a manner that might be deemed temporary or unconventional. Further
advancing this argument, the Plaintiff refers to the Supreme Court's deliberations in Star Athletica,
LLC v. Varsity Brands, Inc., focusing on a hypothetical scenario regarding a design on a guitar:

“If that entire design is imaginatively removed from the guitar’s

surface and placed on an album cover, it would still resemble the
shape of a guitar. But the image on the cover does not “replicate”
the guitar as a useful article. Rather, the design is a two-dimensional
work of art that corresponds to the shape of the useful article to
which it was applied... Failing to protect that art would create an

37
Id.
38
Star Athletica (“In rejecting petitioner’s view, the Court necessarily abandons the distinction between
‘physical’ and ‘conceptual’ separability adopted by some courts and commentators.”)
39
“Design” here referring to “the combination” of “details” or “features” that “go to make up” the useful
article.

8
 anomaly: It would extend protection to two-dimensional designs
that cover a part of a useful article but would not protect the same
design if it covered the entire article. The statute does not support
that distinction…”40

The Plaintiff argues that this reasoning is applicable to the 3D CAD renderings of fashion
designs. They suggest that if one can conceptually dissociate the aesthetic aspect of a doll's
clothing from its functional attributes (such as coverage, warmth, and modesty) and envision it as
an independent 3D design, it would meet the criteria for the separability test. Thus, akin to how a
two-dimensional artwork (e.g., a print) can be abstracted from a garment and safeguarded as art, a
three-dimensional design (e.g., a CAD rendering of clothing) should similarly be detachable from
its practical utility and eligible for protection as a sculptural work.

The Plaintiff articulates that, although the doll clothing in question may not exhibit physical
separability, there is a definitive conceptual separability present. This delineation implies that,
despite the inability to detach the artistic features of the clothing's design without altering its
functional utility, these artistic elements are discernible and can subsist independently from the
garment's utilitarian aspects in a theoretical framework.

Further, the Plaintiff advances an ancillary yet pertinent contention: the judiciary should
refrain from broadening the "useful article" definition to encompass items characterized by an
inherent utilitarian function that is contingent upon the context of their application.
Acknowledging the distinct foundational principles and objectives that underpin trademark and
copyright law, the Plaintiff invokes the analysis provided by Judge Posner in the trademark
litigation of W.T. Rogers Co. v. Keene as insightful for the matter at hand. This invocation suggests
that the interpretative lens applied in the realm of trademark jurisprudence could offer a valuable
perspective in addressing the nuances of this controversy:

“The difficult cases, and this is one, are cases in which the feature
sought to be trademarked can be said to be functional only if giving
aesthetic pleasure is a function… Suppose we say that one function
of an automobile is to be visually impressive, opulent, magnificent-
-in a word, beautiful; and that the little statue of Mercury is not just
an identifying symbol but one of the details, one of the adornments,
that make this manufacturer's automobile a thing of beauty…If this
view were taken, functionality would swallow up much, perhaps all,
of trademark law… it would be unreasonable to deny trademark
protection to a manufacturer who… created a trade name, symbol,
or design that became valued by the consuming public for its
intrinsic pleasingness as well as for the information it conveyed
about who had made the product, unless the feature in question had
become generic, and therefore costly to engineer around.”41

40
Star Athletica.
41
W.T. Rogers Co., Inc. v. Keene, 778 F.2d 334 (7th Cir. 1985)

9
 The Plaintiff contends that the aforementioned argument, originating from a trademark
dispute, compellingly underscores the ramifications of broadening the constructs of "useful
articles" and "intrinsic functionality" in the context of copyright law. This cautionary stance
highlights concerns that an expanded interpretation could precipitate a disproportionately broad
application of the separability test, potentially resulting in an undue extension of copyright
protections beyond their intended scope.

2. Whether Abba's use of Diago's doll clothing designs constitutes

copyright infringement.

The Plaintiff asserts their entitlement to copyright protection for their creations, irrespective of
the original intent to market these items specifically as doll attire. This assertion is supported by
referencing the landmark case Mazer v. Stein, wherein the Supreme Court affirmed the legitimacy
of copyright claims for statuettes designed as lamp bases, complete with electrical components.
This precedent substantiates the Plaintiff's argument that "nothing in the copyright statute supports
the argument that the intended use or the use in industry of an article eligible for copyright bars or
invalidates its registration."42 The Plaintiff contends that Abba's replication of Diago's doll clothing
designs, without authorization, constitutes a breach of copyright law, regardless of Diago's initial
commercial strategy for these products.

The Plaintiff further references the case of Ted Arnold Ltd. v. Silvercraft Co., in which the
court ruled that an antique telephone repurposed as a housing for a pencil sharpener qualified for
copyright protection.43 This analogy is employed to illustrate that the original utility of an object,
such as an antique telephone or a statuette, does not preclude its eligibility for copyright when used
in an innovative manner. Accordingly, the Plaintiff argues that doll clothing, irrespective of its
potential wearability by humans, does not diminish its qualification as a copyrighted work of art.
This stance is reinforced by the principle that "the registrability of a work of art is not affected by
the intention of the author as to the use of the work, the number of copies reproduced, or the fact
that it appears on a textile material or textile product.”44

The Plaintiff underlines their right to market doll apparel for human use without forfeiting
copyright protections, asserting that copyright law encompasses works of applied art. They argue
that the defendant's production and sale of imitations of the Plaintiff's doll clothing designs
constitute a clear infringement of these copyrights. The Plaintiff contends that Abba's defense,
categorizing these designs as "useful articles" thus exempt from copyright, overlooks the intrinsic
creative and artistic essence of the designs, which are conceptually distinct and protectable
regardless of their functional application.

The Plaintiff introduces a concluding observation, addressing potential apprehensions

regarding the establishment of a monopolistic dominion within the fashion industry as a
consequence of the adjudication of this case. To elucidate this point, they refer to a notable
statement by Judge Posner in W.T. Rogers Co. v. Keene, which they argue is germane to the
discourse of this copyright litigation:

42
Mazer v. Stein.
43
Ted Arnold Ltd. v. Silvercraft Co., 259 F. Supp. 733 (S.D.N.Y.1966)
44
46 FR 33249, June 29, 1981, as amended at 60 FR 15606, Mar. 24, 1995: 61 FR 5445, Feb. 12, 1996

10
 “Ornamental, fanciful shapes and patterns are not in short supply, so
appropriating one of them… does not take away from any
competitor something that he needs in order to make a competing
brand. But if the feature is not ornamental or fanciful or whimsical
or arbitrary, but is somehow intrinsic to the entire product consisting
of this manufacturer's brand and his rivals' brands, trademark
production will be denied….A firm that makes footballs could not
use as its trademark the characteristic oval shape of the football,
thereby forcing its rivals to find another shape for their footballs;
since they wouldn't be able to sell any round or oblong or hexagonal
footballs, that firm would have, not an identifying mark, but a
product monopoly… The football's oval shape is ‘functional’ in the
following practical sense: it would be found in all or most brands of
the product even if no producer had any desire to have his brand
mistaken for that of another producer…. So if an automobile
manufacturer places at the front end of its hood a statue of Mercury,
it can if it wants make this its trademark (or one of its trademarks),
because its competitors do not need a statue of Mercury on the hoods
of their cars in order to be able to compete. To put this differently, a
functional feature is one which competitors would have to spend
money not to copy but to design around...”45

The Plaintiff posits that the logic articulated by Judge Posner is directly applicable to their
case concerning doll clothing, and by extension, to all fashion garments under the purview of
expanded copyright protection. They emphasize that, analogous to the observation that “the
hexagonal shape of the end panel does nothing to enhance the tray's utility in holding papers; the
shape is as irrelevant to that function as the fluting in a column is irrelevant to the column's function
of holding up the roof,” the specific shape, dimensions, patterns, and cut of the doll’s clothing do
not contribute to the doll’s functional utility, affirming that such designs possess no intrinsic
utilitarian value.

Given the vast array of possibilities for designers to innovate, conceptualize, and create
diverse configurations, shapes, cuts, patterns, dimensions, and embellishments in textile designs,
the Plaintiff argues that, aside from basic garment patterns, there exist no specific clothing designs
that would necessitate competitors to circumvent. Consequently, the Plaintiff maintains that the
assertion of copyright protection over their doll clothing designs, or any fashion garment designs,
would not result in monopolistic control within the fashion industry.

Jurisprudence and Philosophy of Law

"Philosophy of Law" by Roland R. Foulke adeptly delineates the concept that a judge's
"judicial intuition"—an amalgamation of their accumulated knowledge, life experiences, and
personal integrity—significantly influences their legal interpretations.46 This notion is further

45
W.T. Rogers Co.
46
Roland R. Foulke, Philosophy of Law (Philadelphia: The John C. Winston Co., HeinOnline), 73.

11
explored in "The Political Leanings of the Supreme Court Justices," which delves into the justices'
political ideologies and their implications for legal interpretation, prompting critical reflections on
the interplay between law and politics.47 A rigorous analysis presented in the Northwestern
University Law Review corroborates this, presenting substantial evidence of ideological shifts
among justices serving since 1937, thereby highlighting the mutable nature of judicial intuition
and its impact on legal reasoning.48

The nuanced and inherently personal aspect of legal interpretation, as illustrated by these
references, emphasizes the importance of considering a broad spectrum of philosophical ideologies
when predicting potential Supreme Court decisions. Although an exhaustive examination of all
jurisprudential schools relevant to our case would be ideal, practical limitations such as time,
resources, and personal commitments preclude a comprehensive analysis within the scope of a
single article.

Consequently, this article will primarily focus on the philosophical perspective of

Textualism to dissect our hypothetical scenario. However, I encourage readers to engage with this
analysis from additional jurisprudential viewpoints, including but not limited to Originalism and
Pragmatism. The aim is to construct a theoretical framework that not only elucidates the possible
ramifications of extending copyright protections to clothing but also fosters a broader dialogue on
the subject.

A. Textualism

Textualism, as a judicial philosophy, emphasizes the paramount importance of discerning

the original meaning of the legislative text, adhering to the interpretation it was understood to have
at the time of its enactment, and eschewing any form of judicial speculation regarding the drafters'
intentions or the broader ramifications of a fair reading.49 In "Reading Law: The Interpretation of
Legal Texts," Antonin Scalia and Bryan A. Garner posit that, unlike other interpretative framework
which may incorporate additional considerations into their analyses, textualism prioritizes the
literal interpretation of the text, often concluding the at this stage.50

The ethos of textualism is to ensure a higher degree of legal certainty, fostering

predictability and a profound respect for the rule of law. Scalia and Garner articulate the "basic
assumption" underlying textualism as the division of responsibilities between the legislature and

47
"See 'The Political Leanings of the Supreme Court Justices,' Axios (June 1, 2019),
https://www.axios.com/2019/06/01/supreme-court-justices-ideology (last visited May 26, 2023)
48
Lee Epstein et al., "Ideological Drift among Supreme Court Justices: Who, When, and How Important?"
Northwestern University Law Review, vol. 101, 2007, p. 1483.
49
Scalia, A., & Garner, B. A. (2012). Reading Law: The Interpretation of Legal Texts. St. Paul, MN: West
Publishing (“The exclusive reliance on text when interpreting text is known as textualism.”) (“Textualism, in its
purest form, begins and ends with what the text says and fairly implies.”); Scalia, Antonin and Gutmann, Amy. A
Matter of Interpretation: Federal Courts and the Law - New Edition, Princeton: Princeton University Press, 2018.
(“A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably,
to contain all that it fairly means.”) (“Of all the criticisms levels against textualism, the most mindless is that it is
‘formalistic.’ The answer to that is, of course it’s formalistic! The rule of law is about form... Long live formalism. It
is what makes a government a government of laws and not of men.”)
50
Reading Law.

12
the judiciary, where "legislators enact; judges interpret."51 This philosophy unequivocally discards
the significance of extrinsic materials like legislative history or the presumed intentions behind the
legislation, challenging the notion that a legal provision can be attributed a singular purpose.52
Textualism deliberately distances itself from contemplating the practical effects of a judicial
decision or the contemporary applicability of the laws under review.53 Leveraging the principles
of textualism, this analysis will scrutinize the hypothetical scenario from the vantage point of
textualist doctrine, aiming to elucidate the interpretative nuances and judicial rationale emblematic
of this legal philosophy.

B. Application of Textualism Philosophy to Hypothetical Case

Under the framework of Textualism, a judge would scrutinize the copyrightability of

Diago's doll clothing designs with an emphasis on the explicit language of the Copyright Act,
which characterizes copyrightable material as “original works of authorship fixed in any tangible
medium of expression.” Given that the Plaintiff has presumably met this criterion, a textualist
interpretation would likely affirm that Diago's doll clothing designs constitute original works
eligible for copyright protection.

In the context of The Whole-Text Canon, the statutory definition of a "useful article"
becomes pivotal: “an article having an intrinsic utilitarian function that is not merely to portray the
appearance of the article or to convey information.”54 A judge adhering to textualist principles
would likely concur with the Plaintiff's interpretation of "intrinsic." The inherent purpose of doll
clothing, as argued, is primarily aesthetic rather than functional in terms of serving as wearable
attire for individuals. This parallels the analogy of the knife repurposed as a screwdriver; doll
clothing, even when worn by humans, retains its original aesthetic purpose. This repurposing does
not negate the clothing's original aesthetic intent, affirming that its intrinsic function remains non-
utilitarian in the conventional understanding of utility.

To delve deeper into the implications of textualist interpretation on the Plaintiff’s

argument, it is necessary to engage with a comprehensive—though not exhaustive—array of
textualist interpretive principles. This approach will elucidate the ways in which these principles
might illuminate or support the Plaintiff's stance within the framework of copyright law's
application to doll clothing as aesthetic, rather than utilitarian, objects.

Presumption of Validity: This foundational legal principle posits that an existing statute is
deemed valid and appropriately enforced unless evidence to the contrary is presented.55 Within the

51
Reading Law.
52
A Matter of Interpretation (“When the text of a statute is clear, that is the end of the
matter. Why should that be so, if what the legislature intended, rather than what it said, is the object of our
inquiry?”) (“It is simply incompatible with democratic government, or indeed, even with fair government, to have
the meaning of a law determined by what the lawgiver meant, rather than by what the law giver promulgated.”)
53
Reading Law (“Our subject is the interpretation of texts, we do not address their validity...Our subject is
solely interpretation: how a legal message is to be received by those who must apply its directive.)
54
Reading Law (“The next must be constructed as a whole.”)
55
Reading Law (“An interpretation that validates outweighs one that invalidates... the presumption of
validity disfavors interpretations that would nullify the provision or the entire instrument... that would cause an
arbitration clause to be unenforceable, or that would cause a statute to be unconstitutional.”)

13
context of this discussion, the presumption of validity is relevant to the application of copyright
law, particularly as it pertains to the protection of doll clothing designs. According to this doctrine,
the established interpretation of copyright law as safeguarding these designs is accepted as
legitimate and binding in the absence of substantial grounds for reevaluation.

Ordinary-Meaning Canon: This principle dictates that statutory language be construed

according to its common, prevailing interpretation in contemporary usage, except where the statute
explicitly denotes a term's employment in a specialized sense.56 Within the ambit of copyright law,
a "useful article" typically denotes an item endowed with an inherent utilitarian purpose that
transcends mere aesthetic representation or the transmission of information.57 Given this
definition, doll clothing, when applied to its designated function, does not qualify as a "useful
article" by this standard.

Fixed-Meaning Canon: This canon posits that the language employed within a statutory
framework ought to be construed according to its contemporaneous understanding at the moment
of the statute's enactment.58 Consequently, the term "useful article" should be interpreted in light
of its connotation at the time the copyright statute was codified. Should it be the case that,
historically, doll's clothing was not categorized under the ambit of "useful articles," such a
precedent should be preserved and applied in contemporary interpretations.

Omitted-Case Canon: This principle underlines a fundamental tenet of statutory

interpretation: the legislature's intent is paramount, and nothing should be interpolated into a
statute beyond what was explicitly considered by the legislative body.59 Consequently, if the
statute does not explicitly categorize doll clothing worn by humans as a "useful article," such an
interpretation should not be inferred or imposed by judicial analysis.60

Negative-Implication Canon: This rule operates on the premise that the explicit mention of
one element within a statute inherently suggests the omission of alternative elements.61 Thus, if
the statute distinctly safeguards designs that are crafted to depict an appearance or transmit

56
Reading Law ("Words are to be understood in their ordinary, everyday meanings- unless the context
indicates that they bear a technical sense.")
57
Reading Law (“Context embraces not just textual purposes but also (1) a word’s historical associations
acquired from recurrent patterns of past usage, and (2) a word’s immediate syntactic setting- that is, the words that
surround it in a specific utterance.”)
58
Reading Law (“Words must be given the meaning they had when the text was adopted.”)
59
Reading Law (“Nothing is to be added to what the text states or reasonably implied…That is, a matter
not covered to be treated as not covered.”)
60
Reading Law (“After all, no statute, and no private instrument for that matter, pursues its ‘broad purpose’
at all costs. The statute might not have won majority approval without the provisions that limit its application or that
simply stop short of what it might have done. Those limiting provisions (or the absence of more expansive
provisions) are no less a reflection of the genuine ‘purpose’ of the statute than the operative provisions, and it is not
the court’s function to alter the legislative compromise.”)
61
Reading Law (“The expression of one thing implies the exclusion of others... The more specific the
enumeration, the greater the force of the cannon... Even when an all-inclusive sense seems apparent, one must still
identify the scope of the inclusiveness (thereby limiting implied exclusion).”)

14
information—such as doll clothing—it logically follows that designs with a solely utilitarian
purpose are implicitly excluded from protection under this interpretation.62

Harmonious-Reading Canon: This canon dictates that statutory provisions must be

construed in concert, ensuring coherence and consistency across the legislative text.63 According
to this principle, the "useful articles" provision should be interpreted in alignment with the entirety
of copyright law, with the aim of eliminating any contradictions or inconsistencies within the
statute. Therefore, applying the Harmonious-Reading Canon would preclude any interpretive
approach that generates discord, such as classifying doll clothing—predominantly designed for
aesthetic purposes—as "useful articles," thereby ensuring a unified and consistent interpretation
of copyright law.

The invocation of theses interpretative canons, notably the principle of supremacy,

counsels against an expansive redefinition of doll clothing as a "useful article" for human use based
on ancillary functionality.64 The term "useful" inherently pertains to the concept of practical utility
or application in the context of human activities, as opposed to a hypothetical utility within a
diminutive, inanimate setting. As commonly understood, inquiries into an article's "usefulness"
inherently probe its practical applicability in daily human endeavors, not its potential utility in a
simulated environment. We refer to its practical utility in everyday human life, not within the
context of a miniature, imaginative, nor inanimate world.

Justice Antonin Scalia, an ardent advocate of textualism, articulated the imperative of

construing texts to encompass all that they reasonably signify, underscoring the finite spectrum of
meanings attributable to words and the impermissibility of interpretations that exceed such
semantic boundaries.65 His perspective is exemplified in his dissent in Smith v. United States,
where he argued that the common understanding of "uses a gun" invariably relates to employing a
firearm for its conventional purpose—as a weapon—rather than for unorthodox uses such as a
hammer or paperweight:

“The Court concludes from this that whenever the term appears in
this statute, ‘use’ of a firearm must include non-weapon use... I do
not agree. We are dealing here not with a technical word or an
‘artfully defined’ legal term... but with common words that are, as I
have suggested, inordinately sensitive to context. Just as adding the
direct object ‘a firearm’ to the verb ‘use’ narrows the meaning of
that verb (it can no longer mean ‘partake of’), so also adding the
modifier ‘in the offense of transferring, selling, or transporting

62
“Solely” meaning “not involving anyone or anything else,” Oxford Language Dictionary (2023); In our
case, the conceptual utility of doll clothing is not it’s only, or sole, function.
63
Reading Law (“The provisions of a text should be interpreted in a way that renders them compatible, not
contradictory.”)
64
The principle of textualism or the supremacy of text is a method of interpretation which asserts that the
meaning of a legal document, such as a statute or contract, should be derived from the ordinary meaning of the
language in the document itself, as understood by a reasonable person at the time it was written.
65
A Matter of Interpretation; Reading Law (“The application of a governing text to given facts on the basis
of how a reasonable reader, fully competent in the language, would have understood the text as the time it was
issued.”)

15
 firearms’ to the phrase ‘use a firearm’ expands the meaning of that
phrase (it then includes, as it previously would not, non- weapon
use). But neither the narrowing nor the expansion should logically
be thought to apply to all appearances of the affected word or phrase.
Just as every appearance of the word ‘use’ in the statute need not be
given the narrow meaning that word acquires in the phrase ‘use a
firearm,’ so also every appearance of the phrase ‘use a firearm’ need
not be given the expansive connotation that phrase acquires in the
broader context ‘use a firearm in crimes such as unlawful sale of
firearms.’ When, for example, the statute provides that its
prohibition on certain transactions in firearms ‘shall not apply to the
loan or rental of a firearm to any person for temporary use for lawful
sporting purposes,’... I have no doubt that the ‘use’ referred to is
only use as a sporting weapon, and not the use of pawning the
firearm to pay for a ski trip. Likewise when, in § 924(c)(1), the
phrase ‘uses . . . a firearm’ is not employed in a context that
necessarily envisions the unusual ‘use’ of a firearm as a commodity,
the normally understood meaning of the phrase should prevail.”66

Extending this logic, querying a reasonable individual—whether at the time the legislation
was crafted or presently—about the utility of doll clothing would likely elicit perceptions of their
practical usefulness in the human domain, rather than their aesthetic value or functionality within
a doll's context.67 Furthermore, posing a question regarding the perceived purpose of doll attire
would presumably prompt responses aligning with its aesthetic appeal and role in distinguishing
dolls from one another, rather than attributing to it a broader, practical utility.

Conversely, a counterargument might advocate for a broader interpretation of "usefulness"

or "utility" under the Copyright Act to include psychological well-being, positing that aesthetic
objects, such as doll attire, extend beyond their tangible form to provide emotional or mental
benefits. This perspective suggests that the evolving societal context necessitates an adaptive
approach to legal interpretation, potentially advocating for a more inclusive definition of "useful
articles" that acknowledges psychological comfort as a legitimate aspect of utility. Such an
expansive interpretation could offer enhanced protection for creative endeavors by recognizing the
intangible benefits they confer. Let's examine this argument further through a Socratic dialogue,
featuring a textualist debating with a proponent of this viewpoint:

Textualist (T): Good day. You mentioned that the usefulness of a

doll's clothing, or any aesthetic object, provides psychological
comfort for humans to cope with existential fears of life. You further
argue that function in this case isn't physical, but mental. Could you
elaborate on this?

66
Smith v. United States, 508 U.S. 223, 113 S. Ct. 2050, 124 L. Ed. 2d 138 (1993), Court Opinion.
67
Where I define a “reasonable individual” as “any sane person, not philosophically inclined to
overanalyze, would consider the primary functional intent of the object, not any secondary, tertiary, quaternary,
quinary, senary, septenary, octonary, nonary denary, or subsequent possibilities.”

16
Counter Argument (CA): Certainly. I believe that the 'useful' in
'useful articles' can be extended to psychological comfort. Aesthetic
objects, like doll's clothing, serve a function beyond the physical by
providing mental comfort or relief.
T: I see. Would you agree that words should be interpreted based on
their ordinary meaning at the time of the writing of a law?
CA: Yes, I suppose that is generally true.
T: Right. In the context of the Copyright Act, the term "useful
articles" was defined as “an article having an intrinsic utilitarian
function that is not merely to portray the appearance of the article or
to convey information.” If we consider the ordinary meaning of
'useful' or 'utility' around the time the act was written, would you
agree that it generally referred to physical or practical usefulness?
CA: Yes, it probably did. However, our perceptions of what's useful
have changed significantly since then. Consider that at one time,
laws didn't recognize the importance of digital content, but today's
legal frameworks have adapted to protect such creations as our
understanding of their value has evolved. Similarly, we now have a
more nuanced understanding of the psychological impact and value
of aesthetic objects. Shouldn't our interpretation of copyright law
reflect these advances in our societal understanding?
T: That's an interesting point. But if we were to expand the
interpretation of 'utility' to include psychological comfort, would it
not potentially encompass virtually all aesthetic objects under the
Copyright Act?
CA: It could, but I believe that the law should evolve to offer more
comprehensive protection for creative works.
T: From one viewpoint, yes. However, one of the primary tenets of
textualism is to avoid interpreting statutes in ways that can cause
them to become unreasonably broad. Also, expanding the definition
this way could lead to inconsistency and unpredictability in legal
interpretation. Doesn’t law require a degree of predictability for
effective governance?
CA: It does, but laws also need to evolve with society, as
demonstrated by the digital content example I provided.
T: Absolutely, laws should evolve. However, in a textualist's view,
that evolution should happen through changes in the law itself made
by the lawmakers, rather than through interpretation by the courts.
After all, wouldn't you agree that it's the legislators' role to write the
laws and the courts' role to interpret them?
CA: Yes, that is the separation of powers. But courts can also
interpret laws in line with societal changes, considering our evolved
understandings.
T: Indeed, they can. However, in this case, the textualist approach
would suggest that expanding 'utility' to include psychological
comfort isn't clearly supported by the text of the Copyright Act

17
 itself, nor the lawmakers' likely intentions at the time of enactment.
Wouldn't you agree that such a significant reinterpretation of the
word 'utility' might be more appropriately done by legislators, given
its potential impacts?
CA: While that is one viewpoint, I believe that courts also have a
role to play in ensuring our laws stay relevant and effective in light
of societal and intellectual advancements.

Based on the text of the Copyright Act, the term "useful articles" can be reasonable assumed
to be intended to differentiate between items that serve a practical, utilitarian function for people
and those that merely portray appearance or convey information. Doll's clothing, while serving an
aesthetic purpose, doesn't meet the practical utilitarian function required to be classified as a
"useful article" in our human world. If I were to consider a “useful article” as having an intrinsic
utilitarian function that relies on the specific context in which it is used, I would have no basis for
the distinction except for an interpreter’s assessment of what the purpose ought to be which goes
into the realm of metaphysical abstractions.68 The role of the interpreter, in this case, should not
be to infer new purposes, but rather to understand and adhere to the original design intention.69 If
the legislative body wanted to exclude clothing they would have included that language in the text.

In textualist interpretation, the goal is to interpret the text as it is written, without favoring any
particular party, and to ensure consistency and predictability in legal interpretation. Furthermore,
applying the presumption against ineffectiveness70 in this case supports the notion that interpreting
the doll's clothes as a "useful article" just because they can be worn by humans would undermine
the copyright protection that these designs should effectively have. Due to this analysis, I deem it
unnecessary to perform the separability test and are ready to make a ruling: A judge, whose judicial
intuition is informed by Textualism, could be assumed to rule in favor of the Plaintiff.

Implications of Expanding Protection

Extending copyright protection to garments could profoundly affect the realm of fashion
intellectual property. Such a move may spur legal disputes among fashion designers,
manufacturers, and retailers due to perceived infringements. However, it could also stimulate
industry innovation and creativity by creating a system akin to royalties in the music and arts
industries. While how to handle the specifics of this is outside of the scope of this paper, I’d still

68
Reading Law (“Good judges dealing with statues do not make law. They do not ‘give new content’ to the
statute, but merely apply the content that has been there all along, awaiting application to myriad factual scenarios.”)
69
A Matter of Interpretation. (“Government by unexpressed intent is similary tyrannical. It is the law that
governs, not the intent of the law maker… Men may intend what they will; but it is only the laws they enact which
bind us.”-17); One must address the fact that the statute does not explicitly address the issue of secondary
functionality or secondary intrinsic properties. This is likely because the intent of the law was not to protect designs
that are primarily functional in nature but to provide protection for designs that possess an artistic quality that is
separate and independent from their function. Regardless, the Omitted-Case Canon asserts that if a statute does not
expressly include or address a particular matter and it should not be added through interpretation.
70
Reading Law (“A textually permissible interpretation that furthers rather than obstructs the document’s
purpose should be favored.”) Essentially, it’s a rule of statutory interpretation which posits that every provision and
term in a statute or law has a purpose and should be interpreted in a way that gives it effect rather than rendering it
meaningless, redundant, or superfluous.

18
like to add possible solutions in order to add to the brainstorming process of those who have the
authority to make changes.

One proposed blueprint for an enhanced Copyright Protection Framework for Fashion
Designs, I consider the automatic copyright protection at the point of inception for designs, while
simultaneously advocating for formal copyright registration. This voluntary registration imparts
robust copyright protection, anchoring the benefits offered to designers who opt in. Central to this
framework is the proposition of a Digital Copyright Repository, harnessing the capabilities of 3D
CAD Software and Artificial Intelligence (AI) to digitize and scrutinize registered
designs.71Addressing the digital divide in access to technology, I propose a provision for
subsidized CAD digitization services during the registration process.72 Furthermore, I propose a
flexible grace period ranging from six months to two years post-public unveiling for designers to
formalize their copyright registration.

In the event of erroneous copyright protection, rather than blanket liability exoneration for
the copyright office, I propose some form of an Alternate Dispute Resolution mechanism. This
mechanism would serve as an arbiter among the infringed party, the alleged infringer, and the
copyright office, promoting a shared liability model. To safeguard against potential financial
repercussions resulting from inadvertent copyright protection, I recommend the establishment of
a Copyright Insurance Scheme. Designers could opt for this coverage during the registration
process, mitigating potential financial risks.

Concurrent with these structural reforms, I recommend undertaking Public Awareness

Initiatives highlighting the sanctity of original designs and delineating the legal ramifications of
copyright infringement. Legislative reforms could be enacted to buttress this new framework,
addressing potential ethical and legal challenges that may arise. A strategic alliance with fashion
design educational institutions could provide students with opportunities for Federal Work-Study
Programs or internships within this division of the Copyright Office.73 Despite the integration of
technology, the onus of verifying the originality of designs remains on the designers. Designers
should be advised to engage in comprehensive due diligence to affirm the uniqueness of their
designs.74

Less reformative, there are possible simpler solutions: Analogous to the music industry's
methods of handling samples75 and master recordings,76 the fashion industry could institute a
71
This repository would be governed by a regular maintenance protocol to ensure technology-driven
accuracy and reliability.
72
This could be financed from an allocated segment of registration fees.
73
A designer could engage with a student skilled in CAD services at a local fashion institute for digitizing
their creations. Upon validation, the student could directly submit the CAD representations to the Copyright Office.
74
This responsibility would be emphasized during the registration process.
75
Andertons Music Co., “What is Sampling in Music?,” https://blog.andertons.co.uk/learn/what-is-
sampling-in-music (last visited June 2, 2023)." (“Sampling in music involves taking a section of audio from another
source – in this instance, an existing song – and then reworking it into the creation of a new track.”)
https://blog.andertons.co.uk/learn/what-is-sampling-in-music
76
Amuse, “Owning your Masters: The ultimate guide,” https://www.amuse.io/en/content/owning-your-
masters?cn-reloaded=1#:~:text=The%20master%20is%20the%20original,covers%2C%20remixes%2C%20etc (last
visited June 2, 2023) (“A master recording is the original recording of a song… As an artist, owning your master

19
system where designers could license their designs for a fee or a portion of the profits. Under this
structure, original designers would retain rights to their designs while granting licenses for their
usage. Should such a system be implemented, I would fervently advocate for individuals involved
in the design process to earn a share of the project's proceeds. While the primary owner of the
fashion garment would receive the majority of the profits, each contributor to the garment's
creation should be entitled to a percentage. This arrangement mirrors how songwriters, producers,
and singers each receive a share of the earnings from their collective work. 77

Overall, this proposition presents a dynamic, equitable, and comprehensive solution for
fashion design copyright protection. It balances the potential of technology with its inherent
limitations and underscores the shared responsibility of all stakeholders. This solution is, however,
a hypothesized approach and does not delve into the numerous logistical considerations required
to implement a program of such scope and magnitude.78 This complex issue of fashion intellectual
property could be addressed via multiple strategies. The inclusion of actual garments under
copyright protection is a multifaceted matter that demands careful consideration and analysis,
aiming to strike a balance among the interests of designers, manufacturers, and consumers. I
emphasize that this section's purpose is not to resolve the extent of copyright law's protection for
fashion but to propose potential remedies.

Conclusion

Law professors Kal Raustiala and Christopher Sprigman have posited that the prevalence
of design reproductions in the marketplace serves to diminish their allure and abbreviate their
lifecycle, thus fostering a culture of innovation.79 This perspective, however, seems to dovetail

recordings gives you the legal rights to freely appropriate and maximize your opportunities to make money. It gives
you full control over your music.”)
77
In the fashion industry, roles contributing to the creation of a garment's aesthetic and ornamental
attributes include: the creative director who oversees the entire process and provides the artistic vision, the fashion
designer who develops the initial concept and style, the pattern maker who translates the design into a technical
pattern, the textile designer who creates unique fabrics or prints, the sample maker who constructs the initial
physical prototype, embellishment artists who add unique artistic details like embroidery or beadwork, and the
production manager who ensures the designer's vision is maintained throughout the creative process. In the music
industry, analogous roles contributing to the creation of a song are: the music producer who provides overarching
direction and creative insight, the songwriter who conceives the initial musical idea (akin to the fashion designer),
the arranger who shapes the specific rendition of the song (analogous to the pattern maker), the instrumentalist who
contributes unique musical elements (similar to the textile designer), the demo singer who delivers the first vocal
rendition of the song (like the sample maker), the backing vocalist or musician who adds unique artistic elements to
the track (comparable to the embellishment artists), and the recording engineer who ensures the producer's vision is
maintained throughout the creative process (similar to the production manager).
78
While the proposition does account for necessary legal reforms, a legal analysis would be required to
ensure absolute adherence to all potential legal challenges; While this proposition is thorough and well-conceived, it
may encounter logistical hurdles pertaining to infrastructure, funding, and workforce requirements; Although the
proposition integrates a funding mechanism via registration fees, the costs incurred in establishing and maintaining
the system, along with necessary training and public awareness campaigns, could be substantial; While the design of
the system is inherently scalable due to its digital nature, the actual scalability may be contingent on the capabilities
and efficiency of the deployed AI and CAD technology; The proposition advocates for government oversight to
ensure security. However, specific measures regarding data protection and privacy are not elaborated upon in this
proposal.
79
See Kal Raustiala & Christopher Sprigman, The Piracy Paradox: Innovation and Intellectual Property in
Fashion Design, 92 VA. L. REV. 1687, 1721-22 (2006).

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with the interests of the fast fashion sector, which is often criticized for its engagement in practices
that are both ethically questionable and environmentally detrimental. By championing
“desirability,” and arguably, profits, this viewpoint supports business models that inhibit the
development of a fashion industry that is slower, more sustainable, and ethically grounded.

Advocates for the protection of designers' intellectual property, environmental

sustainability in the face of growing climate concerns, and the constitutional mandate to “advance
science and the useful arts by granting authors and inventors the exclusive right to their respective
writings and discoveries for a limited time,” can anticipate a paradigm shift. It becomes imperative
to harness the protective mechanisms embedded in our legal system, utilizing judicial avenues to
affirm and extend copyright protections for designers.

In the illustrative lawsuit of Diago v. Abba, drawing from the Plaintiff’s persuasive
arguments and the critical analysis of what constitutes a "useful article," it is posited that, should
this matter reach the Supreme Court, the justices would likely rule in favor of copyright eligibility
for Diago's doll clothing designs as original works of authorship. Historically, the judiciary has
not classified doll attire as a "useful article," recognizing instead that these designs are
conceptually distinct from any practical utility when adorned on dolls. Consequently, Diago's
innovative designs for life-sized doll apparel qualify as applied art.

The fashion domain, and designers in particular, encounter significant hurdles in securing
copyright protections for their creative outputs. The case of Diago v. Abba illustrates that through
inventive legal strategies—such as classifying their creations as applied art, specifically in the
realm of doll clothing—designers can navigate around the predatory tactics prevalent within the
industry, thereby safeguarding their intellectual labor.

Echoing the sentiments of Circuit Judge Oakes, who described Kieselstein-Cord v.

Accessories by Pearl, Inc. as teetering on “a razor’s edge of copyright law,” we find ourselves at
the precipice of transformation.80 My proposed strategy does not merely suggest change; it
promises to be the incisive cut, the decisive slice through the very fabric of copyright
jurisprudence, heralding a landmark decision. This strategy, akin to a finely honed blade, is poised
to pierce the heart of copyright law with precision, releasing a vital essence that will rejuvenate
the creative community.

Like a razor blade that reveals hidden depths with each cut, this monumental case promises
to carve out new paths, allowing the lifeblood of innovation to flow freely. Artists, akin to famished
vampires languishing in the shadows of obsolescence, stand on the brink, their creative spirits
parched for sustenance. My strategy beckons like the first break of dawn after an endless night,
promising to release a torrent of lifeblood so desperately needed. This newfound nourishment is
poised to awaken the dormant powers within our creative kin. Like famished vampires teetering
on the verge of oblivion, these artists will voraciously partake in the blood of freedom and
expression, revitalizing their creative prowess.

80
Kieselstein-Cord v. Accessories by Pearl, Inc.

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