In the United States, clothing is considered a “useful article” and is generally not eligible for copyright protection. If the clothing design has a feature that is novel and non-obvious, it may qualify for a design patent but run-of-the-mill, common clothing items would not be protectible. So, what about the written pattern to make the item? Clothing patterns, including the wording, descriptions and photographs, would likely be eligible for copyright protection assuming they are sufficiently creative and original. But, the copyright applies only to the written pattern and does not extend to the finished product.
For instance, say I buy a pattern for a simple but pretty dress. It is a good pattern that I am able to follow easily and my dress comes out looking perfect. It looks so good that I decide to sew ten more and sell them online. Is this allowable? Generally, yes. The pattern designer would have no right, under copyright law, to dictate that items that have no copyright protection cannot be sold.
However, the above is only true under copyright law. Contract law may also apply if access to the pattern was conditioned on the finished works not being sold. If I checked a box or somehow indicated that I understood the dresses could not be sold but I sell them anyway, the pattern designer can certainly file a lawsuit against me for a breach of contract. But, It would be improper for the pattern designer to file a DMCA takedown and have the dress listing removed since it is not a copyrighted item.
Comments