Is Tiffany Blue Copyrightable?

*** The writing does not, and is not intended to, constitute legal advice by any means***

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It's that time of the year. Yes, I'm studying for my law school final exams. However, with Fordham Law opting for the pass/fail grading system in light of the current situation, I decided to keep posting during the exam period. While making an outline for Professor Hugh Hansen's copyright class, I thought it would be worth sharing with you the very fundamentals of copyright law in the United States and their practical implications for fashion. This is a very very broad stroke at the whole picture with lots of caveats, so please be aware of it.

Legal realism is a strand of legal philosophy, which proposes that, in practice, judges are willing to overturn well-established doctrines and precedents if public policies in play, strongly supported by the facts of a case, would lead to an equitable administration of justice. In the context of intellectual property (IP) laws, John Locke's naturalistic idea that property ownership originates from the expenditure of labor ("effort creates property" is Hugh's catchphrase!) is a big underlying public policy. Since last summer, I worked for Professor Hugh Hansen's IP Institute as a research assistant, and he is openly a legal realist. His viewpoint benefited me tremendously in giving me another angle to approach a case. I agree with him in the sense that copyright protection should be afforded to those who sweated to create a work of art. That is precisely why I am studying law so that I can help designers in need of help. (Visit Professor Hugh's official website for his perceptive insight.)

1) The Constitution
The Constitution grants Congress the enumerated power (meaning the Constitution expressly confers it as opposed to the implied power) to "Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". See U.S. Const. art. 1, § 9, cl. 9. The clause is formulated in a compound sentence structure, so, interpreted correctly, science (copyright) refers to writings and useful arts (patent) discoveries. Therefore, copyright protection is constitutionally mandated.

2. The Copyright Act of 1976 and its subsequent amendments
Based on the constitutional power granted to it, Congress enacted the Copyright Act of 1976, followed by a string of amendments. The Act provides that "copyright protection subsists in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." See 17 U.S.C. § 102. This federal statute lists the subject matter (i.e. literary works, musical works, and the list goes on) of copyright and thus defines the scope of copyrightable materials. (It is beyond the purview of this blogpost to go into the technical details of this legal edifice. It merits its own post.) It suffices to say that copyright is federally protected. States also have their own set of copyright laws. This layered protection mechanism attests to how strongly people feel about the importance copyright protection in the United States.

3. Three constitutional requirements
Once your work falls into one of the subject matters in the Copyright Act, the work has to satisfy three constitutional requirements to be eligible for copyright protection. The United States Supreme Court, through cases, came up with three constitutional requirements for copyright protection: originality, fixation, and idea/expression dichotomy. Having said this, it can't be emphasized enough that copyright attaches to a work the moment it is fixed in a tangible medium of expression, provided that other requirements can later be proven. This makes sense since no one would file a lawsuit unless there's a copyright infringement to begin with.

i) Originality
A work has to show "a modicum of originality". The bar is very low. The Supreme Court has made very clear, time after time, that judges are ill-equipped to evaluate the artistic merit of a given work. In Bleistein, Justice Holmes wisely said, "It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work of art]." See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903). I value his principled approach because, in the world of the creative, things that depart from the established norms are not well received at first. Remember when the Impressionists were disdained as lacking in fine taste? However, that does not mean everything is original. There has to be a de minimus contribution. Also, a work has to be the product of independent creation. If a monkey typed up something that came very close to a screenplay of Shakespeare, monkey cannot be held liable for copyright infringement because the resulting work was independently created. Fanciful? Quite opposite. (Listen to this NPR podcast.)

ii) Fixation
The work has to be fixed in a tangible medium of expression. If it is a writing, it can be fixed in a physical manuscript. Some people misunderstand that what's being protected is the manuscript. No, what copyright protects is the writing contained in a given tangible medium. Here's a bit of legal realism. Can a pilot sue a photographer who took a photo of his skywriting and sold it commercially? Possibly yes. A zealous advocate can argue that the skywriting was fixed in the air, albeit it transiently, for a sufficient duration for it to be photographed.

iii) Idea/Expression dichotomy
An idea is not protected. A particular expression of the idea is if it meets the other two requirements. The doctrine of scène-à-faire is a case in point. Professor. Susan Scafidi, the director of Fordham's Fashion Law Institute summarized it perfectly in her interview with Bloomberg Law when she said, "If you're shooting a Western, you have to have cowboys and horses. If you're shooting a Hallmark romance, you have to have a sunset and a Gazebo." However, drawing a fine line where an idea becomes an expression is extremely challenging. For fashion, color is not copyrightable under this requirement because it is an idea, the very building block of fashion design. One judge famously hinted that it would be preposterous if Mattise were to argue that he has an exclusive use over any color for his paintings. Therefore, that quintessential Tiffany Blue is not copyrightable, although it receives trademark protection because it serves as a distinctive source identifier for consumers in the market.

4. Authorship
In order to receive copyright protection, you have to be an author of a copyrightable work. Joint authorship is possible and indeed quite common. However, it is of paramount significance that parties see eye to eye that they intend the resulting work to be a joint work at the outset. So for fashion designers, make sure that this is the case if you are collaborating on a project that involves a potentially copyrightable work (i.e. a statuette that incorporates uniquely original stylistic elements). Also, in the case of a work made for hire, the creator of a commissioned work has no legal grounds for claiming authorship. Everything that's made within the scope of employment is owned by the commissioner-employer unless the creator-employee contracts around. So if you are an employee that produces designs for Louis Vuitton, Louis Vuitton is the author of those designs. However, if the creator is deemed an independent contractor that provides creative service in the eyes of the law, then the creator has a fairly good shot at claiming authorship.

5. Copyright Registration
If you are the owner of a copyrightable material, you can register it with the Copyright Office. The filing is fairly inexpensive ($35 for electronic filing). As an expert agency, Copyright Office receives enormous respect in court. Most importantly, copyright registration certificate is a prima facie (a rebuttable assumption) evidence of valid copyright ownership. It means that unless the opposing party successfully presents a compelling evidence to the contrary, your copyright ownership is presumed to be valid. Visit the official website for further information on how to file an application.

This is all I have for today. If you have questions, feel free to leave them in the comment section. I'd be more than happy to answer.

Preview: Tomorrow, Soo Joo is holding an Instagram live with Harper's Bazaar Singapore to talk about diversity in fashion at 5pm (Eastern Standard Time). I am writing a blogpost about it. Stay tuned for both the live and the blogpost!