Deposits with the copyright office of pictures depicting dress designs, as opposed to specimens of the actual fabric designs, are usually sufficient to protect those designs.  See Blue Fish Clothing, Inc. v. Kat Prints, 1991 WL 71113 at *3 (E.D.Pa. 1991) (Designs displayed in clothing catalogs properly registered); see, also, Winfield Collection, Ltd. v. Gemmy Industries, Corp., 147 Fed.Appx. 547 (6th Cir. 2005) (citing King Features Syndicate v. Fleischer, 299 F. 533 (2d Cir.1924); Geisel v. Poynter Prods. Inc., 295 F.Supp. 331 (S.D.N.Y. 1968); Fleischer Studios, Inc. v. Ralph A. Freundlich, Inc., 5 F.Supp. 808 (S.D.N.Y. 1934)) (copyright protection for two-dimensional photographs or drawings encompasses three-dimensional depictions that are substantially similar).

A party seeking to establish fraud on the copyright office in order to rebut the presumption of copyright validity of a registered dress design, bears the heavy burden of proving deliberate misrepresentation (This same standard is applied for both the copyright application as well as the deposit accompanying the application.  See Data General Corp. v. Grumman Systems Support Corp., 36 F.3d 1147, 1163 (1st Cir. 1994). See Chere Amie, Inc. v. Windstar Apparel, Corp., 191 F.Supp.2d 343, 350-51 (S.D.N.Y. 2001) (citing Whimsicality, Inc. v. Rubie’s Costume Co., 891 F.2d 452, 455 (2d Cir.1989); Eckes v. Card Prices Update, 736 F.2d 859, 861-62 (2d Cir.1984) (fraud on the copyright office occurs only when there is a “knowing failure to advise the copyright office of facts which might have occasioned a rejection of the application”); Santrayall v. Burrell, 993 F.Supp. 173, 176 (S.D.N.Y.1998) (the affirmative defense of fraud requires proof of deliberate misrepresentation to overcome the presumption of validity)).

Mere mistake or inadvertence in the application process is not sufficient to challenge the validity of a copyright registration.  See Imperial Laces Inc. v. Westchester Lace Inc., 1998 WL 830630 (S.D.N.Y. 1998).  In Imperial Laces, the plaintiff filed a copyright application with the copyright office claiming a copyright on lace design No. 8191 and identifying itself as the author of the design. However, plaintiff failed to indicate in the designated portion of the application that design No. 8191 was a derivative work based upon lace design No. 5725.  Id.  The application was signed by plaintiff’s vice president, as the authorized agent for plaintiff, who did not read the application before signing it.  Id.  The court found that:

Although required to do so, Imperial failed to identify lace design No. 8191 as a derivative work on its copyright application. As this appears to have been the result of mere inadvertence rather than fraud, however, this omission in no way invalidates Imperial’s copyright registration. See Eckes v. Card Prices Update, 736 F.2d 859, 861-62 (2d Cir.1984); Harrison/Erickson, Inc. v. Chicago Bulls Ltd. Partnership, 1991 WL 51118, at *5 (S.D.N.Y. 1991).

Id. at note 4.
   

This requirement of scienter on the part of the applicant in proving fraud on the copyright office was similarly addressed in M.S.R. Imports, Inc. v. R.E. Greenspan Co., Inc., 1983 WL 1778 (E.D.Pa. 1983), which held:

Mr. Rodack testified at trial that, since he believed he had designed the wagons himself based on his own original ideas, there was nothing ‘preexisting’ to report. He may have been entirely incorrect in his narrow reading of the term ‘preexisting,’ but this does not establish intentional or purposeful withholding of information.

Defendant offered nothing to refute Mr. Rodack’s claim of lack of understanding of the requirements of section 6 of the application, except the fact that Mr. Rodack had prepared numerous applications in the past. This in itself is insufficient to prove fraudulent conduct or the necessary scienter to warrant invalidation of the copyrights.

Id. at *9 (citations omitted) see, also, Sunham Home Fashions, LLC v. Pem-America, Inc., 2002 WL 31834477 at *5 (S.D.N.Y. 2002) (Manufacturer committed inadvertent error, rather than knowing fraud, on copyright office in falsely designating quilt designs as works made for hire, when it had employees in its design department who did not understand legal terms fill out copyright applications, and thus false designation did not destroy presumption of validity arising from certificates).

Thus, deposits with the copyright office of pictures depicting dress designs are usually sufficient to protect those designs, and a claimant asserting fraud on the copyright office emanating from such deposits bears a heavy burden.