Bathing suit designer accused of infringing on tissue paper copyright. WWW v. CV

A copyright is a set of exclusive rights granted to the creator of an original work of art when the art is fixed in a tangible form. The creator of an original work of art is granted the exclusive right to copy distribute and sell the copyrighted work, among other things. If someone other than the copyright owner exercises one of the exclusive rights granted by copyright law, that is considered copyright infringement. A copyright owner can sue to stop copyright infringement with an injunction and to get monetary damages for infringement which has occurred.

Not every artistic expression can be copyrighted. One of the distinctions between what can and cannot be copyrighted is whether the object is a useful article. Useful articles are excluded from copyright protection by United States Copyright Law to the degree that ornamental features can be distinguished from functional features. This means that the design of a fork or a flashlight cannot be copyrighted as a sculpture. However, if the ornamental features of a useful article can be separated from the functional features of a useful article than the ornamental features can be copyrighted.

In STAR ATHLETICA, L.L.C. v. VARSITY BRANDS, INC., No. 15–866 (U.S. 2017) the United States Supreme Court held that a feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated.

Since STAR ATHLETICA there has been increased copyright activity with respect to the surface patterns of different articles.

WEWOREWHAT, LLC, v. CV COLLECTION, LLC, 1:20-cv-8623 (S.D.NY 2020) is an example of a case where a clothing designer was accused of infringing on the copyright of a tissue paper design.

Plaintiff in this case is a fashion brand created in 2014 by Danielle Bernstein. Plaintiff sells a variety of different articles of clothing including the bathing suit reproduced above on the left. Plaintiff’s bathing suit features a pattern titled WWW Silhouettes Design. The WWW Silhouettes Design was created by Plaintiff and was inspired by Henry Matisse’s line drawings of the human form.

Defendant owns and operates The Great Eros, a fashion label founded by designer Christina Viviana, that launched in 2016 and primarily sells lingerie and leisurewear. When Defendant sells a product it wraps the product in tissue paper which features a pattern with line drawings of the human form. An example of Defendant’s tissue paper is reproduced above on the right. On August 10, 2020, Defendant sent Plaintiff a Cease & Desist Notice objecting to the WWW Silhouettes Design. Defendant claimed that Plaintiff’s bathing suit design infringed on the Defendant’s tissue paper. On October 13th Defendant registered its copyright in its tissue paper pattern.

Plaintiff filed a complaint for declaratory judgment of non-infringement in October 2020. Essentially this means that the Plaintiff wants to court to say that copyright infringement did not occur rather than waiting for the Defendant to file suit. In the complaint Plaintiff requests that the court declare Plaintiff is not infringing on Defendant’s copyright and that Defendant is not entitled to any relief.

This case will be interesting to watch because it touches on both independent creation as a defense and a copyrighted work being applied to a useful article.

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