Ballet Costumes and the Art of Copyright

By Cielomar Puccio

The image of a ballerina is not complete if it is missing its tutu and pointe shoes. These two images have become icons of what a ballerina should wear to perform the lovely art we call dance. In fact, these icons are so important that little girls take ballet classes dreaming of one day performing in a full theater with pointe shoes and a beautiful tutu.

While pointe shoes have a short life and are a personal item of the ballerina, the tutus and costumes, many times, are created and kept by the dance company for many years to be used by many different dancers. Many dancers look up to wearing a costume worn previously by a praised ballerina or even by a friend making the past “life” of the costume as important as the costume itself.

Intellectual Property In Costume Design

Art, which includes ballet in the more physical side of visual artistry, is an important component of human life. In fact, it is so important that the United States Constitution (“Constitution”) provides for its protection. The Constitution grants Congress the enumerated 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.” ^{In legal terms, the protection of these creations are named intellectual property (“IP”). There are different types of IP. Some examples are patents, copyright, and trademarks, among others. Each one has a specific definition and is protected by law. When it comes to ballet costumes, it is important to consider all IP laws to figure out what the best method is to protect them.}

Trademarks and Patents

The United States Patent and Trademark Office (“USPTO”) is an agency of the United States Department of Commerce. Among its many roles, it grants patents for the protection of inventions and registers trademarks. ^{The USPTO defines trademark as “any word, phrase, symbol, design, or a combination of these things that identifies your goods or services.” Examples could be “word, slogan, design, or combination of these. It could even be a sound, a scent, or a color.” An example would be a unique signature color or even a unique color scheme used in the creation of the ballet costumes for a specific performance.}

In contrast, a patent for an invention is the grant of a property right to the inventor, issued by the USPTO. There are three types of patents. These are the utility patents, design patents, and plant patents. The design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture. ^{This kind of patent sometimes overlaps with copyright law. For example under the copyright law you cannot protect the way that design elements are identical in shape as another, identical in cut, in dimensions, and/or pieced together in a costume. Nonetheless, you may be able to get protection of this under the design patent protection. A design patent can also prevent others from creating costumes that show any resemblance to your sketch design. Design patents, nonetheless, are very expensive to obtain.}

Copyright

The Copyright Act of 1976 (“Act”) protects original works of authorship fixed in any tangible medium of expression. ^{An example of how this protection applies to costume can be the sketches. The actual drawings used to create the costumes can be protected by copyright law if original. Besides the sketches of the costume, sometimes even the textile designs, in other words the actual design imprinted in or on the fabric can be protected by copyright law.}

Costumes and Copyright Law

Costumes have long been a highly contested copyright law area for many decades. After many litigations^{, the The Copyright Office (“Office”) in 1991 issued a Policy Decision on the Registrability of Costume Designs, in which it stated that fanciful costumes will be treated as useful articles for copyright registration purposes. The Act defines “useful article” as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally part of a useful article is considered a ‘useful article’.” An example of a useful article is clothing. Pants are a type of clothing and has a utilitarian function which is to cover the body. So, if a costume is made of something that resembles pants like fabric to cover the lower area of a person in a shape of “birdlike legs”, this will not be protected by copyright law because it is essentially a useful article otherwise known as pants. An exception would be masks. The Office has stated that masks will not be considered as a useful article and can be granted copyright protection.}

In conclusion, with this information it could be said that a costume would be copyrightable if it contains artistic works that can be separated from the utilitarian aspect.

Star Athletica, LLC, v. Varsity Brands, Inc.

In Star Athletica, LLC, v. Varsity Brands, Inc., the United States Supreme Court (“the Court”) rendered its most recent decision based on this subject of costumes and the “conceptual separability” of utility and design^{. The case concerned Varsity Brands, a company which makes cheerleader uniforms and had several copyright registrations on two-dimensional designs. Varsity Brands sued Star Athletica, another company known for creating cheerleader uniforms, for an alleged infringement in their copyright in terms of copying their two-dimensional stripes, colors and other ornamentation on the uniforms that Star Athetlica created.}

The Court held that a feature incorporated into the design of a useful article is eligible for copyright protection only if the feature can satisfy two requirements. The first requirement is that the design is a work of art that can be separated from the useful article. The second requirement is that the work of art separated from the useful article would have copyright protection on its own or placed in any other medium.

In this specific case even though the cheerleading uniforms were considered utility articles, the symbolism and insignia portrayed on the outfits were given artistic value and determined to be a design that can be separated from the useful article and that can be given copyright protection.

Conclusion

Costumes, ballet or otherwise, are copyrightable depending on the ability to separate the design elements from the utilitarian costume elements and find that these design elements are original and creative enough to receive independent protection. This is a case-by-case decision that the Office will have to determine each time a costume registration comes along. When protecting the IP of costumes other laws can be considered like trademarks and patents. A protected ballet tutu and costume allow that important piece of cultural relevance to live on for generations and generations to come; granting little girls who come to watch ballet performances the opportunity to be part of that important piece of cultural relevance and identity that will continue to inspire them every day. Nonetheless, of its legal protection, any individual that attends a ballet performance can without a doubt conclude that the costumes worn by the dancers are definitely works of art.

Suggested Readings

Can I use copyright to protect my fashion designs?, Copyright Alliance. Available at: https://copyrightalliance.org/education/qa-headlines/copyright-fashion-designs/.

Caroline Hamilton, Behind the Seams: Ballet Costumes carry an Embodied History, Pointe, (Feb. 18, 2020). Available at: https://pointemagazine.com/ballet-costume-history/.

Compendium of U.S Copyright Office Practices, Third Edition. Available at https://www.copyright.gov/comp3/chap900/ch900-visual-art.pdf

Halloween Costumes and Copyright: 5 things you should know, JD Supra, (Oct. 27, 2017). Available at: https://www.jdsupra.com/legalnews/halloween-costumes-and-copyright-5-87331/.

Katie Scholz, Costumes and Copyrights: Can you afford to wear that?, IPWatchdog, (July 18, 2018). Available at: https://www.ipwatchdog.com/2018/07/18/costumes-copyrights-can-you-afford-to-wear-that/id=99278/.

Sam Behbehani, Supreme Court Hearing Copyright Case on Costumes, LegalMatch: Intellectual Property, (Nov. 17, 2016). Available at: https://legalmatch.typepad.com/intellectualproperty/2016/11/supreme-court-hearing-copyright-case-on-costumes.html

Star Athletica, LLC, v. Varsity Brands, Inc., 137 S. Ct. 1002.

United States House of Representatives, Protection for Fashion Design, Statement of the United States Copyright Office before the Subcommittee on Courts, the Internet, and Intellectual Property, Committee on the Judiciary, (July 27, 2006). Available at: https://www.copyright.gov/docs/regstat072706.html#N_11_.

About the Author

Cielomar Puccio is an attorney barred in Puerto Rico and the District of Columbia currently residing in Miami, Florida with a virtual law firm called Brandllet that focuses on Trademark, Copyright, and Artist Immigration for artists, especially ballet dancers. She is also a ballet dancer, lover and advocate of the arts. You can read more about her and her law firm at http://www.brandllet.com.

1. Caroline Hamilton, Behind the Seams: Ballet Costumes Carry an Embodied History, Pointe, (Feb. 18, 2020). ↑
2. Const. art. I, § 8, cl. 8 ↑
3. What is Intellectual Property?, World Intellectual Property Organization, https://www.wipo.int/about-ip/en/ (last visited Jan. 24, 2022). ↑
4. General information concerning patents, United States Patent and Trademark Office, https://www.uspto.gov/patents/basics/general-information-patents (last visited Jan. 24, 2022). ↑
5. What is a trademark?, United States Patent and Trademark Office, https://www.uspto.gov/trademarks/basics/what-trademark (last visited Jan. 24, 2022). ↑
6. Trademark Examples, United States Patent and Trademark Office, https://www.uspto.gov/trademarks/basics/trademark-examples (last visited Jan. 24, 2022) ↑
7. General information concerning patents, United States Patent and Trademark Office, https://www.uspto.gov/patents/basics/general-information-patents (last visited Jan. 24, 2022). ↑
8. 17 U.S.C. § 102. ↑
9. Whimsicality, Inc. v. Rubies Costumes Co., Inc., 721 F.Supp. 1566 (1989); Masquerade Novelty, Inc. v. Unique Industries, Inc., 912 F.2d. 633 (3dCir.1990) ↑
10. 17 U.S.C. § 101. ↑
11. Star Athletica, LLC, v. Varsity Brands, Inc., 137 S. Ct. 1002. ↑
12. Id. ↑