Our friends over at Fashionista pointed out the latest in Nasty Gal's design pirating ways, and this time, there is a chance it may actually be illegal. As Fashionista wrote, for Fall/Winter 2014, "Phoebe Philo sent models down the runway at Céline wearing a single large earring made from mixed metals and materials, including tassels, gemstones and antique-looking chains." Now, a rather identical-looking earring is available for sale on Nasty Gal's website (just the latest in a line of Céline-like accessories the Los Angeles-based retailer has co-opted in the recent past), and this instance is worthy of a bit of discussion. While most instances of copying are perfectly legal in the U.S., largely because copyright protection does not extend to garments in their entirety, that same body of law does, in fact, protect jewelry. So, what about the earrings here?
In order to receive copyright protection, an artistic expression must be a work of authorship that is original and fixed in any tangible medium of expression, the latter of which is clearly not an issue here. Originality is also likely not an issue either, as we know, the level of originally required for a work to achieve copyright protection is low. This leaves separability. For the initiated, 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 those garments, and the various elements of a purse or piece of jewelry, if original, are protectable under the umbrella of copyright law as Pictorial, Sculptural or Graphic Works ("PSG").
In order for a work to qualify as a PSG worthy of copyright protection, several elements must be met, namely: There must be some degree of separability between the artistic element at issue and the useful function of the item. So, for instance, can a t-shirt exist without the design on it? If so, there is separability. How does that apply here? It is a bit difficult to predict, as courts waver quite a bit on this issue, but we think a court would find the earrings merit copyright protection because there is conceptual separability.
Whenever we think about conceptual separability, the Kieselstein-Cord case and its decision in favor of protecting a decorative belt buckle, comes to mind. The court said in that case, "The primary ornamental aspect of the Vaquero and Winchester buckles is conceptually separable from their subsidiary utilitarian function" and that pointed out that wearers of the belts "used them as ornamentation for parts of the body other than the waist."
So, the earrings utilitarian purpose is to display itself, right? It's not like a belt that has the purpose of holding up pants. In my opinion, then, I think that anything beyond that utilitarian purpose should be seen as separate, and thus copyrightable. Which means that all the charms that make the Celine earring more than just a stud should be worthy of copyright protection. Meaning Nasty Gal is, as always, infringing.
* This article was written in conjunction with Jennifer Williams.