Clothing designs can be beautiful. But they are also functional. Fashion’s dual nature sits uneasily in intellectual property law, and its treatment by copyright, trademark, and design patent laws has often been perplexing. Much of this difficulty arises from an unclear understanding of the nature of functionality in fashion design. This chapter proposes a robust account of fashion’s function. It argues that aspects of garment designs are functional not only when they affect the physical or technological performance of a garment but also when they affect the perception of the wearer’s body. Generally, clothes are not designed or chosen simply to look good. They are also characteristically designed or chosen to look good on. This approach clarifies the appropriate treatment of fashion design in intellectual property, and it exposes the conceptual limitations of the U.S. Supreme Court’s copyright decision in Star Athletica, L.L.C. v Varsity Brands, Inc.

Chapter 8 focuses on a specific issue created by 3D printing technology: whether DMFs of purely (or primarily) utilitarian objects should receive copyright protection. Tangible objects dominated by utilitarian concerns do not receive copyright protection. Neither should the corresponding DMF, I argue. This novel argument has attracted criticism, but I defend it as a matter of doctrine and policy. Doctrinally, I argue that U.S. law excludes copyright protection not only for useful articles, but also for designs of (i.e., the shape of) useful articles, even if depicted in a two-dimensional drawing. Moreover, most jurisdictions around the world extend copyright protection only to works containing creativity, and I argue that DMFs of utilitarian objects contain no copyrightable creativity – they are exact, uncreative representations of the unprotected tangible objects. As a matter of policy, allowing copyright protection for DMFs of useful articles would cause copyright law, which is geared toward aesthetic works, to trespass on patent law, which is geared toward utilitarian works. In short, granting these DMFs copyright protection would inhibit the progress of utilitarian innovation.