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Costume or Clothing?

In this week's Carnivale of Couture, the clever Style Graduate seeks examples of runway looks that could double as Halloween costumes.  Or carnival costumes, for that matter. 

This topic appears on its surface to be an innocent amusement, and perhaps a bit of a joke about the extreme fashions shown on the runway.  But beware -- it also poses a conundrum that could overload the fevered brains of copyright afficionados.

Last year, in Chosun Int'l., Inc. v. Chrisha Creations, Ltd., 413 F.3d 324 (2d Cir. 2005), Judge Guido Calabresi (former dean of the Yale Law School and my esteemed torts professor) addressed the question of whether Halloween costumes are subject to copyright protection.  In 1991, the Copyright Office had stated that neither costumes nor ordinary garments are protectable as a whole, since they are "useful articles," but costumes may also contain separable design elements that could be protected in the manner of artworks. 

While the lower court had thrown up its hands at the "incoherence" of such a policy and simply dismissed the copyright infringement claim, Guido sent the case back for a separability test -- asking the district court to decide, for example, whether the body portion of a costume was a useful article of clothing but the heads and tails were distinct elements that could be protected by copyright.  According to his decision, some elements of the costumes were at least in theory copyrightable.

So if a designer sends an outfit down the runway as part of a collection, but a blogger later decides that it is more suitable as a Halloween costume, are elements of the look copyrightable?  What if the look was never intended for production, but was a unique garment produced for the show?  And for that matter, what exactly does "useful" mean in the context of couture?  (Confusing?  Of course.  Legal minds are still scratching their heads over the meaning of usefulness, separability, and so on.) 

Halloween costumes can be scary.  In the world of Counterfeit Chic, the separability test in copyright is even scarier.

P.S.  My favorite candidate for runway-to-trick-or-treat fashion?  Yohji Yamamoto's 1998 wedding gown, a wonderful play on proportion as well as the relative significance of an actual bride in comparison with the social and cultural excesses of a white wedding.  Of course, it requires 4 men with bamboo poles to hold up the hat -- but what's a wedding without cute attendants?

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