The Fashion Designer as Author:
The Case of a Danish T-shirt
Stina Teilmann-Lock


1 For the former, see University of London
Introduction
Press Ltd. v. University Tutorial Press Ltd.,
Where does design belong in the hierarchy of the arts? Is a designer
[1916] 2 Ch. 610. The latter was formu-
capable of creating works of artistic expression that match the
lated by the U.S. Supreme Court in Feist
works of fine artists? And fashion designers, in particular: What is
Publications, Inc., v. Rural Telephone
Service Co., 499 U.S. 340 (1991).
their status as measured against, say, the designers of applied arts?
2 The Berne Convention, which has 165
Within the framework of copyright law, we can find a straight
nations as contracting parties, obliges
answer to these questions. Since copyright law was introduced
member states to protect “literary and
in the eighteenth century in a number of European countries, as
artistic works” for, as a minimum, the
lifetime of the author and 50 years after
wel as in the United States, it has served to recognize the “skil ,
his or her death. See Berne Convention
labor, and judgment” or “spark of creativity” that authors and art-
for the Protection of Literary and Artistic
ists invest in their works.1 Thus, under U.S. copyright law (and a
Works (Paris Act of July 24, 1971, as
amended on September 28, 1979).
large number of other copyright laws in the world) visual artists
3 U.S. copyright law as contained in Title
hold exclusive rights to reproduce, distribute, and display in public
17 of the U.S. Code defines in sec. 101
their works for the lifetime of the artist plus 70 years.2 Since the
works of “artistic craftsmanship” as
mid-twentieth century, in the United States, designers of applied art
objects of copyright law “in so far as
their form but not their mechanical or
have received a similar protection for any (aesthetic) elements of
utilitarian aspects are concerned; the
their designs that exist “independently of the utilitarian aspects.”3
design of a useful article, as defined
Fashion designers, however, are granted no protection under U.S.
in this section, shall be considered a
copyright law. Courts have consistently found that in fashion
pictorial, graphic, or sculptural work
only if, and only to the extent that, such
designs, the aesthetic element is inseparable from the utilitarian
design incorporates pictorial, graphic, or
element. In other words, they see no creative “remainder” that is
sculptural features that can be identi-
worthy of copyright protection.4
fied separately from, and are capable of
existing independently of, the utilitar-

Some national laws of copyright—notably those of the
ian aspects of the article.” The same
French—contradict the described hierarchy of the arts. Since the
section defines a “useful article” as
early twentieth century, the doctrine of “l’unité de l’art”—the unity
“an article having an intrinsic utilitarian
of art—has prescribed that a French law judge is to evaluate neither
function that is not merely to portray the
appearance of the article or to convey
the merit nor the purpose of a creative work. Original expression
information. An article that is normally
manifested in any genre or form—be it a sculpture or a dress—
a part of a useful article is considered a
must be protected as a copyright work in France.5
‘useful article.’” Today, this definition is

Nonetheless, the traditional approach for national laws of
not taken to mean that a “useful article”
must be physically separable; rather, U.S.
copyright has been to discriminate between works of “pure” art
courts have interpreted the issue to be
(i.e., fine art) and works of art that are also “useful articles”—as in
whether there is conceptual separability
U.S. copyright law—and to offer protection only to the former. As it
between the utilitarian and the aesthetic
is, this circumstance has led to interesting legal practices in coun-
aspects of a work. As can be imagined,

this separation has not always been
tries where design plays an important cultural role. A striking
easy. The seminal case is Mazer v. Stein
347 U.S. 201 (1954).
© 2012 Massachusetts Institute of Technology
29
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example arises in Denmark. Heirs to a renowned tradition, Danish
designers have long been considered contributors to the arts. To be
sure, this recognition has along the way manifested itself in Danish
4 A recent series of U.S. bills proposing
copyright law. Yet, the length of time over which the intrinsic “util-
that fashion (e.g., clothing, handbags,
itarian element” of design kept designers from being granted copy-
purses, wallets, tote bags, belts,
right protection of their works is worth noting.
and eyeglass frames) be included as

In Denmark, fine art has qualified for copyright protection
an object of copyright law have all
since 1837. By the turn of the twentieth century, the Danish parlia-
failed. Such bills include H.R. 5055:
ment was prepared to recognize designers of applied arts as sub-
To Amend Title 17, United States Code,
to Provide Protection for Fashion
jects of copyright law, too. The Act on Authorial and Artistic Rights of
Design (2005), H.R. 2033 Design Piracy
1902 was formulated in such a way as to enable the inclusion of
Prohibition Act (2007), and S. 3728
applied art within its realm of protection. However, in 1907 the
Innovative Design Protection and Piracy
Supreme Court—in a ruling that concerned a Royal Porcelain coffee
Prevention Act (2010).
pot designed by Arnold Krog—declared that “industrial goods”
5 According to L112-1 of the French
Code de la propriété intellectuelle: “les
had no place within the framework of copyright law. This ruling
dispositions du présent code protègent
caused the Danish parliament to amend the law the following year,
les droits des auteurs sur toutes les
adding a provision to specify that:
œuvres de l’esprit, quels qu’en soient

…original artistic works intended to be prototypes for
le genre, la forme d’expression, le mérite

industrial art and handicrafts, as well as the objects created
ou la destination.” (“The provisions

on the basis of such works, are to be considered works of
of this Code shall protect the rights
of authors in all works of the mind,

art whether or not these are produced individually or in a
whatever their kind, form of expression,

larger quantity.6
merit or purpose.”)
6 Law of 28 February 1908 to amend
By this amendment to Danish copyright law, the applied arts
Section 24 of the Act on Authorial and
were formally allowed a legal status that had previously been
Artistic Rights of 29 March, 1904.
7 This step was part of a general move-
reserved for the fine arts.7 Yet Danish courts were not altogether
ment in European copyright law.
convinced. Rulings from the first half of the twentieth century
Copyright protection of applied art had
reveal a degree of hostility toward offering copyright protection
been introduced in France with the Law
to works of applied art: Such rulings resulted from the works’
of 11 March 1902 and in Germany with
“practical purpose.”8
the Law of 9 January 1907. The British

Eventually, the Danish Copyright Act of 1961 specifically
Copyright Act 1911 included “works of
artistic craftsmanship” as objects of
mentioned applied art as an object of protection.9 Since then, a
copyright protection. In Sweden copyright
variety of tea and coffee sets, knives and forks, chairs, tables, lamps,
protection of applied art was introduced
bottle openers, dishwashing brushes, and more have been granted
in 1926, and in Norway in 1930.
copyright protection insofar as they are found to be the result of
8 For more on these rulings see Stina
an author’s “personal,” “creative,” and “independent” effort.10
Teilmann-Lock, “What’s Worth Copying
Is Worth Protecting: Applied Art and
Hence, a wide range of different useful articles have been found
the Evolution of Danish Copyright Law,”
copyrightable—with one conspicuous exception: fashion apparel.
in Scandinavian Design: Alternative
Although formally in Danish copyright law nothing prevents
Histories, ed. Kjetil Fallan (Oxford: Berg
such a finding, fashion design simply has never attained the
Publishers, 2012), 35-47.
status of a copyright work in Denmark. In no case yet have courts
9 Act on Copyright in Literary and
found a fashion design to possess the “degree of originality”
Artistic Works of 31 May 1961, Sec 1.
The Danish term for applied art is
required to qualify for copyright protection under Danish law.
“brugskunst,” which derives from the
Given the scale of creativity that is evident in the works of contem-
German: “Gebrauchskunst.”
porary Danish fashion designers, including Henrik Vibskov, Stine
10 See Morten Rosenmeier, Værkslæren i
Goya, Anne Sofie Madsen, Asger Juul Larsen, Astrid Andersen,
ophavsretten [“The Concept of the Work
and many others, this situation may seem unjustly chauvinist and

in Copyright Law”] (Copenhagen: DJØF
Publishing, 2001).
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Figure 1
Nørgaard T-shirt No. 101. Photo by the author.
old-fashioned on the part of the Danish legal establishment. Not-
withstanding, as mentioned, this line toward fashion is common in
most national laws of copyright.11
Designers as Authors?
To understand the direction copyright law has taken historically in
relation to design, and fashion design in particular, an essential first
step is to look at the concept of the “author.” As it is, copyright pro-
tection is only offered to works that are said to have been created
by an “author.” Our modern understanding of an author as an
inspired individual creator was given its most significant early
characterization by the English Romantic poet, Edward Young, in
Conjectures on Original Composition (1759). In this text, Young gave
expression to a notion of authorship, familiar to us today, in which
an “author” is perceived of as an “original writer” whose work
“rises spontaneously from the vital root of Genius.”12

Young, to be sure, was referring to the originators of
literary works when speaking of authors; he was not thinking
of the creators of cotton T-shirts. However, in 2009, the Danish
fashion designer, Jørgen Nørgaard, was able to congratulate
himself on having been found, by one of the three judges of the
Danish Maritime and Commercial Court, to be, in a legal sense,
11 The Berne Convention leaves it to
the “author” of an “original work:” the so-called “Nørgaard T-shirt
national legislation to determine how
No. 101” (see Figure 1).13 The Nørgaard T-shirt is at the same time a
and whether “works of applied art”
minimalistic and an extraordinary piece of design. It has been on
and “industrial designs” and “models”
are to be protected by copyright law.
the market since 1967, and it has been popular among Copenhagen
12 Edward Young, Conjectures on Original
women of fashion almost without interruption until today. It is
Composition in a Letter to the Author of
cherished for its lasting quality and simple design in pure cotton.
Sir Charles Grandison (Leeds: The Scolar
Only the assortment of colors has changed over the years. In the
Press Limited, 1966 [1759]), 11.
copyright infringement case, J. Nørgaard A/S v. Rebecca Mode Aps
13 J. Nørgaard A/S v. Rebecca Mode Aps
(Danish Maritime and Commercial Court,
March 27, 2009).
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(heard by the Danish Maritime and Commercial Court in 2009
and subsequently on appeal by the Danish Supreme Court in 2011),
the copyright-ability of the Nørgaard T-shirt was tested.

Despite the opinion of one judge, the majority of the
judges in the first court—along with all the judges of the Supreme
Court—held that the T-shirt was not protectable by copyright.
Jørgen Nørgaard was not to be regarded as the “author” of an
“original work” as defined by copyright law. Hence, for the time
being, Nørgaard remains a businessman trading in T-shirts; he
is not an author creating artistic works in cotton. Accordingly,
protection against imitators of his T-shirts is to be sought through
the legal remedy of unfair competition.14

Being recognized as an “author” entails not merely an
esteemed social status. Emphatically, it is a position with a claim
to legal rights. If you are the “author” of an “original literary or
artistic work,” as defined by the Danish Copyright Act, you own
the copyright in the work. This ownership implies “the exclusive
right to control the work by reproducing it and by making it avail-
able to the public, whether in the original or in an amended form,
in translation, adaptation into another literary or artistic form or
into another technique.”15 The exclusive right lasts for the whole of
your lifetime and (to the benefit of your heirs) for 70 years post
mortem autoris. Moreover, authors have “moral rights” in their
work. The “right of paternity” gives an author the right to “be iden-
tified by name as the author in accordance with the requirements of
proper usage, on copies of the work as well as if the work is made
available to the public.”16 By the same token, the “right of integrity”
stipulates that a copyright work “must not be altered nor made
available to the public in a manner or in a context which is prejudi-
cial to the author’s literary or artistic reputation or individuality.”17
In other words, authors have a far-reaching control over the dis-
14 Apart from the copyright infringement
semination and treatment of their works. As long as the Nørgaard
claim, the plaintiff, Jørgen Nørgaard, had
T-shirt remains an “ordinary” consumer product, no one will be
also sued for unfair competition—for
prevented from making their own copies of it or from using it for a
infringement of Sec. 1 of the Danish
number of purposes that the originator of the shirt does not agree
Marketing Practices Consolidation Act,
to. The law against unfair competition, which protects T-shirts and
which stipulates that “traders subject to
this Act shall exercise good marketing
many other consumer products, prohibits bad marketing practice
practice with reference to consumers,
only: What is outlawed is to market a copycat T-shirt in a way in
other traders and public interests.” By
which it might be confused with the real shirt.
marketing a T-shirt which bore a close

Since the eighteenth century, which saw the introduction of
resemblance to the Nørgaard T-shirt,
copyright acts in Europe and the United States, the range of subject
the defendant, so it was claimed,
matter included under copyright law has expanded vastly. The
had failed to act according to “good
marketing practice.”
world’s first law on copyright, the Statute of Anne 1710, offered
15 Consolidated Act on Copyright (Act No.
protection against the unauthorized copying of books only.
202 of February, 27, 2010), Sec. 2(1).
Today, works that may be eligible for copyright protection include
16 Ibid., Sec. 3(1).
sculptures, paintings, websites, music, films, photographs, build-
17 Ibid., Sec. 3(2).
ings, furniture, jewelry, software, and much more.18 In other
18 See e.g. ibid., Sec. 1. Similarly in other
Berne Convention countries.
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words, sculptors, painters, photographers, architects, cabinet-
makers, and software developers are all authors—“inspired indi-
vidual creators” according to the law of copyright. That T-shirt
designers, too, might one day be considered authors by copyright
law is not unthinkable.

Such a development is not accidental. Rather, it is the result
of a remarkable interplay between the concept of the modern
author as promoted by Edward Young (and the Romantic Move-
ment) and the response of copyright law to the many claimants
for protection in the three centuries since 1710. Still, the concept of
the author as an individual creator remains the cornerstone of
copyright law; copyright exists because books and other works
have “authors.”
What Was an Author?
The importance of Young’s Conjectures derived not least from
the particular force of his expression. Young spelled out literary
composition as an organic process, the product of which was
original work:

…let not great Examples, or Authorities, browbeat thy

Reason into too great a diffidence of thyself: Thyself so

reverence as to prefer the native growth of thy own mind

to the richest import from abroad; such borrowed riches

make us poor. The man who thus reverences himself, will

soon find the world’s reverence to follow his own. His

works will stand distinguished; his the sole Property of

them; which Property alone can confer the noble title of
an
Author; that is, of one who (to speak accurately) thinks,
and
composes; while other invaders of the Press, how
19 Young, Conjectures on Original

voluminous, and learned soever, (with due respect be it
Composition, 53-54.

spoken) only read, and write.19
20 See e.g., Thomas Greene, The Light
in Troy: Imitation and Discovery in
Renaissance Poetry (Berkeley: University
By representing writers as the creators of unique works that spring
of California Press, 1982) and Ann Moss,
from an inherent source of genius, Young redefined an “author” as
Printed Commonplace-Books and the
an individual who deserves the sole credit for his or her work. And
Structuring of Renaissance Thought
within this framework of thinking, a work is its author’s property.
(Oxford: Clarendon Press, 1996).
21 See Carla Hesse, “Enlightenment
Such a Romantic concept of authorship was formulated in opposi-
Epistemology and the Laws of Authorship
tion to the Renaissance author, who was considered a kind of crafts-
in Revolutionary France, 1777–1793,”
person, trained in rhetorical arts and the classics, citing sources
Representations, no. 30 (1990):
for readers to recognize.20 Renaissance writers were, accordingly,
109-37; Molly Nesbit, “What Was an
unlikely to claim exclusive rights to their works. However, as
Author,” Yale French Studies 73 (1987):
Romantic ideas spread in the eighteenth century, crediting writers
229-57; Mark Rose, “The Author as
Proprietor: Donaldson v. Becket and
with originality and recognizing individual proprietorship of texts
the Genealogy of Modern Authorship,”
became increasingly common. In this way, the shaping of the
Representations, no. 23 (1988): 51-86;
Romantic concept of authorship and the emergence of authorial
and Martha Woodmansee, “The Genius
rights are inseparable.21 The re-conceptualized figure of the individ-
and the Copyright: Economic and Legal
ual author became an indispensable justification for copyright
Emergence of the ‘Author,’” Eighteenth-
Century Studies 17, no. 4 (1984): 425-48.
protection. Thus, in the debates that preceded the introduction of
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copyright with the Statute of Anne in 1710, the author was pro-
22 See the discussion in Mark Rose, Authors
claimed the master of his or her own writings.22 Systems of royal
and Owners: The Invention of Copyright
privileges in different European countries, including England, had
(Cambridge, MA: Harvard University
Press, 1993), Chap. 3. See also Joseph
provided members of book guilds with exclusive rights to book
Loewenstein, The Author’s Due: Printing
printing, but the Statute of Anne for the first time in history singled
and the Prehistory of Copyright (Chicago:
out the author as the primary rights holder:
The University of Chicago Press, 2002).

Whereas Printers, Booksellers, and other Persons, of late,
23 An Act for the Encouragement of

have frequently taken the Liberty of Printing, Reprinting,
Learning by Vesting the Copies of

and Publishing, or causing to be Printed, Reprinted, and
Printed Books in the Authors or
Purchasers of such Copies 8 Anne

Published Books and other Writings, without the Consent
c. 19 (1710) (Stature of Anne).

of the Authors or Proprietors of such Books and Writings,
24 See Carla Hesse, Publishing and Cultural

to their very great Detriment, and too often to the Ruin of
Politics in Revolutionary Paris, 1789-

them and their Families.23
1810 (Berkeley: University of California
Press, 1991); Martha Woodmansee,
Author, Art, and the Market: Rereading
The emphasis on the figure of the author in copyright law came to
the History of Aesthetics (New York:
be even more important in Continental law, from which moral
Columbia University Press, 1996); Stina
rights originate.24 Today, we perceive of copyright as something
Teilmann, “Justifications for Copyright:
that originates in the author. As things have turned out, the notion
The Evolution of le droit moral,” in New
of the author as an inspired individual creator has proven itself a
Directions in Copyright Law vol. 1, ed.
principal justification for the exclusive rights of copyright law.25 The
Fiona Macmillan (Cheltenham: Edward
Elgar Publishing, 2005), 73-87; and
Romantic notion of authorship has also supplied copyright law
Eckhard Höffner, Geschichte und Wesen
with a remarkably elastic subject of copyright. The subject of protec-
des Urheberrechts [“The History and
tion by copyright law is, precisely, the “author” understood as an
Nature of Copyright”] (Darmstadt: Verlag
inspired, creative individual. And the products of such individuals
Europäische Wirtschaft, 2010).
may well be realized in a variety of forms—sculptures, paintings,
25 In general, three dominant types of
justifications of copyright exist today: the
websites, films, music, photographs, buildings, furniture, jewelry,
argument of natural right, the cultural
software, and so forth. All such products can be protected by copy-
argument, and the economic argument.
right because of their status as “works of authorship.” That the
According to the principle of natural
subject of copyright has been defined in terms of an inner “cre-
justice, authors deserve the fruits of
ative” process has been crucial for the modern development of
their labor: They should justly be masters
copyright law. As a result of this definition, a very wide range of
of their own intellectual creations. The
cultural argument promotes the idea that
different types of “creativity” have come under copyright protec-
writers and artists serve the interest of
tion. In addition, by no means inconceivable, as mentioned, is the
the state and the public: Royalties are
possibility that fashion designs might one day come under copy-
rewards and encouragements to create.
right protection in Denmark. This adjustment would occur as soon
The urge to protect investments and to
as the majority of judges in a Danish court find themselves satisfied
prevent unfair competition, combined
with the analytical tool of a cost/benefit
that the originator of such a fashion design is an author and the
analysis, constitute the main components
design, accordingly, is a work of authorship.
of the economic argument. Copyright is

In fact, in a number of other countries, including Sweden
seen as a legislative means of protect-
and France, copyright protection is already extended to fashion.26
ing and inciting economic investments
However, in Denmark the general stance has been that copyright
in works of, for example, literature,
law should not be instrumental in preventing the participation of
architecture, art, and music. For more
on this, see Stina Teilmann-Lock, British
“fair followers,” which characterize and continue to play a central
and French Copyright: A Historical Study
role in the fashion market: Without the signals that such followers
of Aesthetic Implications (Copenhagen:
and imitations provide, something might hardly be said to be “in
DJØF Publishing, 2009).
fashion.” For the sake of balancing competition in the marketplace,
26 In Sweden, where the legal criteria for
Danish courts have long resisted the granting of copyright protec-
copyright protection are the same as in
Denmark, a number of rulings have
tion to fashion.27
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Figure 2
Heart Beat T-shirt. Photo by the author.
The Nørgaard T-Shirt in Court
For a long time Danish courts also resisted the granting of copy-
right to designers other than fashion designers. During the first
half of the twentieth century, the furniture designers who came to
represent and even personify the “Danish Modern” movement
repeatedly had their works assessed in Danish courts with the
intention that their copyright ability would be confirmed. Yet time
after time, the designs were denied protection on the grounds that
they were the results of the “skilled efforts of a craftsman” rather
than “works of art.”28 However, in 1960 a new development began:
Copyright protection was granted to “The Chair” by Hans Wegner.
Thus went the decision of the High Court of Eastern Denmark in
Snedkermester Johannes Hansen v. Firmaet I. Thorbal s Eftf ved Viggo
Johansen.29 At the trial, numerous declarations paying tribute to the
artistic expressiveness of the chair were cited by the plaintiff and
producer of Wegner’s chair, master cabinetmaker Johannes Hansen.

confirmed that fashion may be a work of
Mogens Koch in his capacity as a court-appointed expert described
authorship: the Högsta Domstolen deci-
“The Chair” as a “marked example of what is covered by the law’s
sion of March, 28, 1995, the Hovrätten
för Vestra Sverige decision of November
[category of] ‘original work of art.’”30 The plaintiff was thus able to
1, 1996, and the Svea Hovrätt decision of
establish as a generally recognized fact that Hans Wegner had cre-
December 21, 2006. For French statutes
ated a “classic work of art” remarkable for its “aesthetic qualities,”
see L112-2 (14) of the French Code de la
and Wegner himself was pronounced “an artist.”31 The High
propriété intellectuelle.
Court’s ruling confirmed this view. And this ruling helped to effect
27 See Jens Schovsbo and Morten
a change in Danish copyright law, by which a piece of applied art
Rosenmeier, Lærebog i Immaterialret
[“Textbook on Intellectual Property
for the first time was expressly recognized in the text of the law as

Law”] (Copenhagen: DJØF-Publishing,
an object of copyright protection.32
2011), 157ff.

The line of argument employed by the plaintiff in the
28 U.1954.170Ø, 170ff.
Nørgaard case was remarkably similar to that of the successful coun-
29 U.1960.483Ø.
sel representing Hans Wegner and his chair. The Nørgaard case—
30 Ibid, 488.
J. Nørgaard A/S v. Rebecca Mode Aps
31 Ibid, 486ff.
—was initially heard by the
32 Act on Copyright in Literary and Artistic
Maritime and Commercial Court in 2009. However, the dispute had
Works of 31 May 1961, Sec. 1.
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actually begun in 2001 when, in a letter directed to Rebecca Mode
Aps, Jørgen Nørgaard had complained that Rebecca Mode was
producing and marketing a T-shirt—labeled “Heart Beat Style
Drop Needle” (see Figure 2)—that was very similar to Nørgaard’s
classic T-shirt No. 101. Inasmuch as Rebecca Mode continued to
produce and market the T-shirt, Jørgen Nørgaard, on June 30, 2003,
requested a preliminary injunction to stop it. The preliminary
injunction was granted by the Bailiff’s Court on July 15, 2003; it
was considered probable that the marketing of Rebecca Mode’s
T-shirt was an act of unfair competition. Soon afterward, 81 boxes
containing 2,545 Heart Beat T-shirts were seized from Rebecca
Mode’s warehouse.

In June 2004, however, the High Court lifted the injunction
on the grounds of the unwarrantably long delay between Jørgen
Nørgaard’s first address to Rebecca Mode and his taking the legal
step of requesting the injunction. In other words, the director of
Rebecca Mode could have his 81 boxes back and was free to market
the Heart Beat T-shirt again. By then, quite clearly being samples of
“last-year’s fashion,” the T-shirts were sold off cheaply at a street
market in Copenhagen.

However, the story did not end there. Jørgen Nørgaard
decided to pursue the matter further, and the result was the case
J. Nørgaard A/S v. Rebecca Mode Aps. As plaintiff in the case, Jørgen
Nørgaard claimed that his T-shirt No. 101 was a copyright work
and that Rebecca Mode’s Heart Beat Style Drop Needle-shirt was
an infringing copy. Nørgaard further maintained that the marketing
of the latter constituted a breach of competition law. The defendant,
the director of Rebecca Mode, pleaded not guilty on all counts and
made the counterclaim that Nørgaard should be obliged to pay
DKR 1, 269,000 (approximately USD 230,000) in compensation for
lost revenue resulting from the injunction.

A remarkable amount of written evidence and testimonials
was presented by the plaintiff at court—all of which served the aim
of reconceptualizing the “Nørgaard T-shirt” as a work of author-
ship. Thus, as we learn from the evidence, the T-shirt is a celebrated
cultural artifact. The Danish Museum of Art & Design has three
copies of the T-shirt in its permanent collection. In the Museum
catalogue, the details of the design—almost unchanged since the
T-shirt came into production in 1967—are described meticulously.
Such qualities as its being made in “cotton with a welt pattern,” its
having a “tight fit,” and its “bias bindings” are particular character-
istics of the T-shirt.33 In 2004, the Nørgaard T-shirt was part of a
special exhibition at the Danish Museum, titled “The Industrial
Icons.” The catalog of the exhibition included an article dedicated
33 J. Nørgaard A/S v. Rebecca Mode Aps
to the cultural significance of the T-shirt. And here the T-shirt
(the Danish Maritime and Commercial
was described as an icon of Danish fashion history, a “primary
Court, March, 27, 2009), transcript of
form” in Danish fashion. American Post-World War II street-style
the records of Danish Maritime and
Commercial Court, 9.
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aesthetics inspired Jørgen Nørgaard to create a new type of shirt:
He “transformed” the “masculine expression” of the classic Ameri-
can T-shirt and “adapted” it to the “natural shape of women.” The
result was a shirt that is simultaneously “general and unique,
archetype and original.”34 We learn in the article that Nørgaard
combines his ability for business with a “burning interest in experi-
mental art and philosophy,” and that on numerous occasions he has
collaborated with visual artists.

The plaintiff also referred to several academic texts on
Danish design: Dansk Design (2006) by Thomas Dickson, Dansk
Design 1945-1975 (2006) by Lars Dybdahl, and Dansk Mode: Historie,
Design, Identitet (2006) by Thomas Schødt Rasmussen (ed.) are
cited as authorities for the view that Jørgen Nørgaard’s design
was “pioneering” and “original.” The works are, furthermore,
cited as authority for the claim that the shirt design is a carrier of
significations that go beyond that of being merely something to
wear: The T-shirt is a symbol of “teenage culture,” “anti-capital-
ism,” “feminism,” and more.35

Journalistic sources are quoted, bearing evidence of the spe-
cial status of the Nørgaard T-shirt over several decades. It is a “clas-
sic:” No other T-shirts have been as popular for so long; it continues
to be bought and worn by women of all ages; it has been copied
many times by other Danish fashion brands, although no other
T-shirt has ever replaced it, nor achieved a comparable status.36 The
plaintiff also points out that in 2007 Jørgen Nørgaard was the first
fashion designer ever to be awarded the prestigious annual prize of
the Danish Design Council.

An expert appointed by the court presented a report on
the technical details, the production, and the marketing of the
Nørgaard T-shirt, including a comparative analysis of the two
T-shirts in dispute. And the expert’s conclusions with respect to its
quality and status were fully in accord with the views already
presented by others. She was able to testify that a number of details
of the Nørgaard T-shirt distinguished it from (and made it superior
to) the Heart Beat T-shirt (as with other T-shirts of the same type).
In her opinion, the Heart Beat shirt was an inferior copy of the
Nørgaard shirt. As such, we are told that it might potentially
deceive customers into thinking that they are faced with the real
Nørgaard shirt; and according to the expert, that the shirt marketed
by Rebecca Mode—made without familiarity with the Nørgaard
T-shirt—would be unimaginable.

A number of witnesses also confirmed the singular status of
the Nørgaard T-shirt: that its design was “unique” and “innova-
tive” when introduced in 1967, that it is the result of an “individual
creative process,” and that Jørgen Nørgaard is a highly “talented
34 Ibid., 9f.
and original designer.”37
35 Ibid.
36 Ibid., 13ff.
37 Ibid., 44ff.
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Figure 3 (left)

On the basis of the presented evidence, the plaintiff claimed
Nørgaard T-shirt detail. Photo by the author.
that the Nørgaard T-shirt No. 101 was an original work of art, and
that it was the result of the independent and original artistic effort
of Jørgen Nørgaard. Hence, the T-shirt should be protectable
Figure 4 (right)
according to the Danish Consolidated Act on Copyright, Section 1(1).
Heart Beat T-shirt detail. Photo by the author.
Moreover, the plaintiff maintained, the Heart Beat model produced
by Rebecca Mode was an infringing copy of the Nørgaard T-shirt.
The one was a slavish copy of the other; despite a few minor differ-
ences in detail, the overall appearance of the two shirts was remark-
ably alike (See figures 3 and 4).38
Just a T-Shirt?
The defendant denied all claims made by the plaintiff. In particular,
he rejected the claim that Nørgaard’s T-shirt was an original work
according to Danish copyright law: This originality, alleged the
defendant, had not been proven by the plaintiff. The quality, shape,
material, and look of the T-shirt did not, in themselves, amount to
the level of originality that is required for something to qualify as a
work of authorship. As the defendant also pointed out, all material
in support of the Nørgaard T-shirt that had been presented in court
by the plaintif was dated after litigation had begun. Furthermore,
the fact that museums and the press celebrate the T-shirt and its
designer for their originality does not necessarily imply that the
T-shirt is an “original work” in the legal sense.39

The defendant also disputed that the Heart Beat shirt might
in any respect be considered an infringing copy of the Nørgaard
T-shirt. That the Heart Beat shirt had in fact been modelled on the
other had not been proven; and in his view, the shirts differ in a
substantial number of details. In response to the claim by Nørgaard
that a breach of Section 1 of the Marketing Practices Consolidation Act
had occurred, the defendant argued that the director of Rebecca
Mode had not acted in bad faith when he marketed his T-shirt; he
did not mean to deceive his customers into thinking that his was
the real Nørgaard T-shirt; and the intent to deceive is a prerequisite
38 Ibid., 51ff.
for infringement of the Act. The market for T-shirts is flooded with
39 Ibid., 58ff.
38
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similar-looking styles, and the Nørgaard T-shirt and the Heart Beat
T-shirt were never intended, the defendant alleged, for the same
segment of the market. The regulation of marketing practices was,
admittedly, a much more appropriate legal framework for this case
than the law of copyright; the defendant nevertheless denied
infringement in this realm as well.40

In their comments, two members of the court found that
it was irrelevant to the question of copyright-ability that the
Nørgaard T-shirt had been on sale for many years. They also
deemed irrelevant that the T-shirt was highly esteemed in a
“cultural context.” Considering that Danish copyright law (to
prevent a “monopolistic market”) requires a high level of origi-
nality and artistic effort for fashion articles and that the design of
the Nørgaard T-shirt consisted of combining just a few components
well-known in 1967, the two judges decided that the Nørgaard
T-shirt did not qualify as a work of authorship. However, the
third judge—the only woman among them—found that the T-shirt
was a manifestation of “artistic skill.” Being the result of Jørgen
Nørgaard’s “independent and artistic effort,” the T-shirt in the
opinion of this judge was protectable by copyright law. With two
votes against one, the ruling went against Nørgaard on the copy-
right issue. He was no “author”’ according to the judges. However,
on the claim relating to bad marketing practice, the judges agreed
unequivocally that Rebecca Mode had unlawfully exploited
Nørgaard’s market position, thereby damaging the brand and
goodwill of the Nørgaard T-shirt. Accordingly, Rebecca Mode was
ordered to stop producing and marketing the Heart Beat shirt or
any other shirt bearing close resemblance to the Nørgaard T-shirt
and to pay damages of DKR 100,000 (approximately USD 18,000)
for market disruption.41
The Supreme Court Decision
The plaintiff appealed the decision, and the case was taken up by
the Danish Supreme Court. In its decision of October 6, 2011, the
Supreme Court confirmed the first court as regards to the question
of whether Jørgen Nørgaard was the “author” of a copyright
40 Ibid.
work.42 The judges decided that he was not. The Supreme Court
41 Nørgaard for his part was ordered
judgment was also in accordance with the Commercial and Mari-
to pay damages of what amounts
time Court in finding that the Nørgaard T-shirt was sufficiently dis-
to approximately USD 1,760 in
tinctive to be protected under the Marketing Practices Consolidation
compensation for Rebecca Mode’s
Act. However, as far as the Supreme Court was concerned, there
lost revenue in relation to a collection
had been no infringement in this realm. The decision of the lower
of children’s shirts. This aspect of the
litigation has not been discussed here.
court was thus overturned on this point. The Supreme Court ruling
42 Rebecca Mode Aps v. J. Nørgaard
pronounced that the Nørgaard T-shirt was a “simple creation which
A/S, Danish Supreme Court decision of
consists of well-known design and ‘form elements’ only.”43 As a
October, 6, 2011 (Case 102-2009).
result of this ruling, only a “slavish copy” of the Nørgaard T-shirt
43 Rebecca Mode Aps v. J. Nørgaard A/S
would amount to infringement; taking into consideration a number
(The Danish Supreme Court, October, 6,
2011), 8.
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of differences in the details of the two shirts, the Heart Beat Style
Drop Needle T-shirt was found by the Supreme Court not to be a
slavish copy. As a result, Rebecca Mode was awarded compensation
for lost profits, and Jørgen Nørgaard was ordered to pay costs
amounting to about DKR 1,100,000 (approximately USD 200,000).

What had the fashion designer done to deserve this? Jørgen
Nørgaard went to court with the conviction that someone had
copied his T-shirt. What he learned was that his T-shirt had been
copied, but such copying was not unlawful and that he had to pay
up simply for believing that it was. In the first court, the judgment
against Jørgen Nørgaard on the copyright issue had been justified
by reference to how, from a societal perspective, having a balanced
law of copyright is paramount. Thus, a balance must be maintained
between the interests of the many creators, providers, and consum-
ers of creative works. Fashion designers as a group are negatively
affected if one designer is able to monopolize the making of
“Nørgaard-style” T-shirts. Consumers benefit from having a wide
selection of products to choose from, and society as a whole has an
interest in avoiding economic and cultural monopolies that impede
innovation and development. As we might see from the first judg-
ment, the message is that the type of violation that occurs when a
design is plagiarized would be better regulated by the Marketing
Practices Act; here, designers are viewed and judged according to
their role as competitors in the marketplace, rather than in their
capacity as “inspired individual creators.” Fashion designers
utterly depend on their ability to build on and be inspired by the
works of others. After all, something can only be called “fashion”
insofar as it is itself a copy that has been copied by others: Copying
is the essence of fashion.

However, the Supreme Court, finding no infringement of the
Marketing Practices Act, altered the message. First, fashion designers
are not “authors” as defined by copyright. As concerns “simple”
designs, their protection against bad marketing practice is nar-
rowed down to a protection against slavish imitations only. What
happens, then, to the Nørgaard T-shirt’s unique status as a cele-
brated cultural artifact? And what about the undisputed fact that
Jørgen Nørgaard has created a pioneering design that has long been
admired by connoisseurs of the art world and the fashion world
alike? What of the fact that the Nørgaard T-shirt—because of its
popularity—has been copied over and over? The Marketing Practices
Act allows that the T-shirt is qualified for protection, but it stipu-
lates that this protection might not come into effect as long as com-
petitors include a few differences in detail.

This situation reframes the question of why Jørgen Nørgaard
was found not to be an “author” of a copyright work. What would
it have taken to persuade the courts that the Nørgaard T-shirt was
the result of an author’s “personal,” “creative,” and “independent”
40
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effort? Because applied art was specifically mentioned as an object
of copyright, the simplest of designs of cutlery, sauce pans, flash-
lights, and much more have been found qualified for copyright pro-
tection. Why not fashion apparel? The only clue that the Supreme
Court gives to understanding its rationale for the decision is the
observation already quoted: that “[Jørgen] Nørgaard’s T-shirt is a
remarkably simple creation which consists of well-known design
and ‘form elements’ only.” In other words, the judges did not con-
sider the T-shirt to be the product of the “organic process” that
characterizes the creation of “original works.” Insofar as the T-shirt
had not sprung from an “inherent source” of creativity—it con-
sisted of “well-known elements”—Nørgaard supposedly had noth-
ing with which to justify the claim that it was his “authorial
property,” to which he was to have exclusive as well as moral
rights. Perhaps to have persuaded the judges that a piece of fashion
apparel was copyrightable, the focus ought to have been on the
alleged “author” rather than on the T-shirt. Much effort went into
establishing the exceptional reception and the reputation of the
Nørgaard T-shirt; no one was left in doubt of the special status it
enjoys in design history and among those of us who wear clothes!
Yet to satisfy a court that the Nørgaard T-shirt is an “original work”
eligible for copyright protection, the strategy should be to establish
that a fashion designer is capable of being an author—in the words
of Edward Young, one who prefers “the native growth of [his] own
mind to the richest import from abroad.” To demonstrate the
organic bond between a fashion designer and his design would be
to recognize that a fashion design might be the result of an author’s
“personal,” “creative,” and “independent” work and effort.
Acknowledgement
The author wishes to thank T-shirt designer Jørgen Nørgaard and
his son, Mads Nørgaard, as well as Lennart Ricard, the court-repre-
senting lawyer of Jørgen Nørgaard, for granting me access to all
case materials, with Nørgaard’s permission, including the actual
T-shirts produced in evidence, and here in photographs.
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