Roy Halston, the creator of the Halston brand, is remembered by fashion
historians for his use of ultrasuede fabric, a soft manmade fabric imitating
suede which could be machine-washed, and for his simple, yet sophisticated
designs. While his main line was designed and priced to attract high-income
customers, he also designed a line for mass-retailer J.C. Penney. Roy Halston
lost control of his brand before
dying in 1990, but the Halston Heritage brand has made a comeback in
recent years and still sells clothes and accessories, some of which are somewhat
reminiscent of the original designs.
On October 15, the Halston company filed
a copyright infringement suit in the central district of California against
G-III, which is the exclusive licensor for Calvin Klein. Defendant produces and
sells women’s clothes and accessories under the Calvin Klein trademark.
At issue are three Halston dresses which
were allegedly copied by Defendant.
 |
| Plaintiff's Design A |
First there is “Subject Design A” dress.
The top of the dress is a simple sleeveless shift, with a round neckline, flaring
asymmetrically below the waist, and revealing a bottom dress in contrasting
color. The company has applied to register its copyright (good luck).
Defendant sold a dress which Plaintiff
found to be a copy of Subject Design A, arguing in the complaint that “it is apparent that the elements, materials,
place, movement, centering, composition, colors, arrangement, overlay,
appearance and structure of the design [sic] are substantially and confusingly
similar, if not identical.”
Plaintiff manufactured and sold another
dress, ‘Subject Design B’, a belted sleeveless dress, with a round neckline,
gently flaring out asymmetrically, revealing the lower part of the left thigh
of the wearer and its contrasting lining. Defendant also manufactured and sold
a belted sleeveless, with a round neckline gently flaring out asymmetrically,
revealing the lower part of the left thigh of the wearer and its contrasting
lining. Plaintiff does not indicate in the complaint that it is in the process
of registering the copyright for Subject Design B, but repeats the
substantially and confusingly similar claim.
 |
| Defendant's dress |
There is also ‘Subject Design C,’a full
length sleeveless dress with a deep V neck and double straps which opens high
on the right thigh of the wearer. Defendant also manufactured and sold a full length
dress with a deep V neck and double straps. However, Defendant’s dress does not
have a slit, but a mermaid shape. However, Plaintiff also claims the two
designs are “substantially similar, if
not identical.”
Plaintiff is of course aware that a dress is
a useful article and, as such, is not protected by copyright. In order to be
able to claim copyright protection for Design A, Plaintiff argues that:
“[Design A] [w]ould qualify as a
protectable pictorial, graphic, or sculptural works- either on its own or fixed
in some other tangible medium of expression, despite having some utilitarian
function, which is to facilitate conduct associated with the 70’s an area which
Roy Halston Frowick is strongly identified [sic], and as described by Erica
Jong as “the purest thing there is. And it is rarer than the unicorn.” Erica
Jong, Fear of Flying (1973). See Star
Athletica, L.L.C. v. Varsity Brands., 580 U.S.___, 137 S. Ct. 1002
(2017).”
The Supreme Court held that In Star Athletica that a feature
incorporated into the design of a useful article can be protected by copyright
if (1) it can be perceived as a two- or three-dimensional work of art separate
from the useful article, and (2) if it 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.
The feature incorporated in the design of
the useful dress is “an overlay to
express movement, affixing fabric in a manner to affect the appearance, weight
and asymmetrical flow of the design, including but not limited to incorporation
of a gusset and tack in the flounce, and increasing the downward visual
consistency and depth of the two colors used.”
Plaintiff seems to argue that the function
of this feature, which can be protected as a work of art, is “to facilitate conduct associated with the 70’s
an area which Roy Halston Frowick is strongly identified [sic], and as
described by Erica Jong as “the purest thing there is. And it is rarer than the
unicorn.”
I was puzzled by the Erica Jong reference and
wondered if Erica Jong was referring in this quote to the 70’s or to Halston.
Actually, she was referring to …well… Here
is the quote: “The zipless
fuck is the purest thing there is. And it is rarer than the unicorn.” I was
still puzzled after finding the quote and I am looking forward to reading
Defendant’s motion or answer to the complaint to find out what its attorneys
made out of it.
