Naeem Khan took to his Facebook page this weekend to call attention to a dress that J. Crew is currently offering for sale, and which, according to the New York-based designer contains a “rehashed” version of one of his original prints. Turns out, Khan, who launched his label in 2003 and has subsequently dressed everyone from Brooke Shields and Beyoncé to First Lady Michelle Obama, saw the dress in question (the Geo Brushstroke sundress) in J. Crew’s Soho, New York store. He was prompted to ask: “WOW … How should I take this … Is it a compliment or a jab?”
We, of course, are prompted to ask: Is J. Crew’s version of Khan’s print, which appeared on a number of dresses in the designer’s Spring/Summer 2014 collection, legal? In theory, Khan very well may have a copyright infringement claim against J. Crew. Here’s why …
While few garments and accessories in their entirety are actually protectable via copyright law in the U.S. (as clothing and many accessories are utilitarian in nature and very few meet the separability requirement for useful articles), the patterns and prints on garments and accessories ARE protectable under the umbrella of copyright law as Pictorial, Graphic or Sculptural Works (“PGS”). In order to receive copyright protection in the first place, an artistic expression must original and fixed in any tangible medium of expression. The latter requirement is clearly not an issue here because the artwork (Khan’s print) has been depicted garments – namely, those dresses that Khan showed for S/S 2014. Khan also likely meets to originality requirement, as we know that the level of originally required for a work to achieve copyright protection is pretty low. This leaves separability, which is at the heart of the PGS category, and which is certainly met here.
In order for a work to qualify as a PGS worthy of copyright protection, several elements must be met, namely: There must be some degree of separability between the artistic element at issue (the S/S 2014 print) and the useful function of the item (the function of the dress). Luckily for Khan, the design on a garment scenario is one that is commonly cited as a classic case in which separability exists. The rational is this: Can a t-shirt exist and function like a t-shirt without the ornamental design on it? Yes. As a result, there is separability. The same reasoning applies here.
The only thing that may be an issue for Khan (if he were to choose to file suit against J. Crew) is the copyright infringement requirement that there be "substantial similarity" between the original design and the copy. I’ll leave it to you to debate this one in the comments section below, as well as Khan’s question of whether this is a compliment or a total jab from J. Crew.