No preemption

A state law may also avoid preemption if it addresses "activities violat- ing legal or equitable rights that are not equivalent to any of the exclu- sive rights within the general scope of copyright as specified by section 106."49 Under section 106, the owner of a copyright is guaranteed five exclusive rights: reproduction, preparation of derivative works (or adap- tation), distribution, performance, and display.50 A state law reaching copyrightable subject matter would be preempted if it provided any of these five rights, or their equivalents. The exclusive right that seems most relevant to the fashion industry is the right "to reproduce the copyrighted work in copies."51 The copy- righted work is infringed if the work is reproduced "in whole or in any substantial part, and by duplicating it exactly or by imitation or simu- lation."52 If a garment managed to acquire copyright protection, it would be direcdy protected from knockoffs by the right of reproduction. Therefore, if garments qualified as copyrightable subject matter, a state statute extending a right to designers equivalent to federal copyright's right of reproduction would be preempted

A state law will be preempted only if it addresses subject matter that falls within the scope of federal copyright and extends a right compa- rable to those provided by federal copyright.53 Part II.A discusses the first prong of the preemption test as it relates to garment designs - namely, whether garments qualify as copyrightable subject matter. Part II.B then discusses whether a state law that protects garment designs would provide a right resembling one of those provided by federal copyright. A. The Subject-Matter Requirement

Section 301 preempts state laws that address works that "come within the subject matter of copyright."54 Conversely, subject matter that does not fall under the umbrella of copyrightable subject matter is fair game for the states.55 Part II.A.1 discusses the fundamental question of whether garments can fit into the category of PGS works and examines the various ways fashion designers have represented their creations in the hopes of gaining copyright protection. Part II.A.2 then addresses whether garments are useful articles, and Part II.A.3 determines whether they would survive the separability test. As part of this analysis, this section examines the various separability tests enunciated