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Fashion Copyright and Culture

As I am getting older, my affinity for shoes and bags is growing with my years. It is not necessarily the name, but the style and the feel, the look of bags and shoes that draw me to spend more and more on fashion. I spend time flipping through catalogues and websites, walking through stores, just appreciating the things I will never own for the financial burden of a shoe and bag obsession has caused a dip in my credit at a young age. However, the abundance of knock-off's for name brands, being sold at much more affordable prices, pose an obvious threat to the fashion aesthete. Just because they look the same, are they same? Who would know? Is the quality the same? The color? Because one brand creates a cute patent leather pump with a rounded toe, and soon after another is selling a shockingly similar shoe, has there been an instance of fashion fraud? Where are the fashion police, the crusaders of all things good and just? Who says what can be determined as having artistic integrity and or intellectual creativity? The moment an idea comes to one's mind, should they file for some sort of protection? The thought process and intellectual property law forever obscure the lines for all concerned about legal protection. Regardless of the medium, intellectual property law is a dynamic field and asks its noble followers to help untangle the messy web of ambiguity. Where do our thoughts and individual creativity meet at the crossroads of copyright and protection? In the fashion industry, one of the world's fastest growing entities as well as large supplier of creative material, intellectual property law and copyright are a new development in the protection of designs and details, sweaters and stitching. Whether in sketch form or in skirt, from the drawing board to the boardroom, fashion copyright is complicated. Can it be protected? When does an instance of 'substantial similarity' become imitation or worse, chargeable theft? Can the line be drawn? If copyright law is extended to include protection for fashion design, will the world of fashion be forever affected? The blurriness in the fashion design industry resulting from the almost counterintuitive cycle of fashion profits spurred by piracy makes it incredibly difficult to decide. Ultimately, copyright protection for fashion design is necessary and without protection, piracy will continue to hinder the progress of creativity and production as well as cause a discontinuity in what can be considered organic artistic thought.

A Design for the Copyright of Fashion

Mencken, Jennifer. A Design for the Copyright of Fashion." Diss. Boston College of Law, 1997.

http://www.bc.edu/bc_org/avp/law/st_org/iptf/articles/content/1997121201.html#fna

"A Design for the Copyriight of Fashion" was written by Jennifer Mencken in 1997. The essay, though short, covers some very important topics in regards to fashion copyright and protection of designs. The introduction considers that becuase the fashion industry is one of the largests and has no boundaries, economically or socially, it is hard to contain.

Mencken's essay discusses the reasoning behind not protecting designs and talks about the process from thought and conviction to pen and paper, and eventually, to the showroom and the streets. She briefly cites the ability for some fashion designs to be protected under Common Law, however, that angle is now since moot. Though the article was published in 1997, almost ten years ago, most of the information remains pertinent. Mencken discusses patents versus copyright and trademarks verus monopolies on fashion.

She continues to argue for the "Implementation of Fashion Design Copyright." She identifies that there is a "conceptual separability of fashion's artisict elements from the functionality of clothing." She cites the Copyright Act of 1976, allowing the line to be cast that fashion design is almost similar to writing, in respects, to protection. Conceptual separability versus the creative process is a major discussion in the paper.

She closes with a discussion on the scope of copyright and the "requirements for implementation." She says, " In creating a copyright system which recognizes the expressions of designers, many old fears, such as burdening the consumer and creating a marketplace monopoly, resurface. With tens of thousands of designers churning out work, it is easy to foresee chaos. How far does the copyright extend? For how long? What would constitute infringement?"

She closes with a discussion on the effect of copyright in fashion on the industry. She concludes that copyright on fashion should be a decision of the designers rather than the people who purchase their creations.

This article is particularly important to my thesis and argument for my paper as it attacks and answers questions about how copyright in fashion can and will affect the industry. This article is also important as it plays devil's advocate and expresses the concern with copyright and fashion and how the lack of copyright can be seen to have not affected the economic aspects of the industry.

Between the Seams, A Fertile Commons

Cox, Christine and Jennifer Jenkins. Between the Seams, a Fertile Commons: An Overview of the Relationship Between Fashion and Intellectual

Property. USC Annenberg School for Communication. 29 January 2005.

This essay, created by Christine Cox and Jennifer Jenkins for The Normal Lear Center on Entertainment and USC Annnenberg was published in January of 2005. They start with a few juxtapositions of steals vs. splurges in magazine and continue to the real argument. "Why not fashion?" The authors pose a great argument, "With a system that tries its best to forbid sampling
and remixing at every turn, how can such an extensive and fertile
commons be allowed to exist?" The essay continues to cite courses in the Copyright field in different mediums and relate them to fashion and the place of protection in fashion design.

The essay continues to talk about Trademark and Trade Dress and how that differs from the fight at hand, copyright protection and the lack of legal protection for fashion design. Like almost every other important article in this field, the authors say that it is an amazing feat for as much copying that goes on within the design world, the industry continues to create and create. The counterpoint to protecting Fashion design rights with copyright is that, "In the fashion industry,
the absence of rights actually may feed the creative process. Fashion
designers are free to borrow, imitate, revive, recombine, transform and
share design elements without paying royalties or worrying about
infringing intellectual property rights."

The article closes with a simple question, "Is fashion the exception or should it be the rule?" The question is left somewhat open ended, having all the information necessary to make an educated decision. The essay claims that "there are few elements of clothing design that are novel." How can you protect something that is not intellectually or creatively unique?

This piece is well written, well supported, and leaves the reader with a few important questions to answer. It is really important in regards to supporting my theis because it is a relatively new piece, including a lot of recent information and identifies major arguments that I am dealing wth in my paper. Again, this paper talks about the cycle of knockoffs and designers and that there lies an equal advantage and disadvantage. This piece will help me to support the argument that it isn't whether fashion design should or should not be copyrighted, rather, how and for how long.

Can Fashion Be Copyrighted?

Winograd, Ben and Cheryl Lu-Lien. "Can Fashion Be Copyrighted?" The Wall Street Journal.

12 September 2006.

This article, wrtiten by Ben Winograd and Cheryl Lu-Lien of the Wall Street Journal talks about the place of knockoffs in the fashion world and if it is possible to protect fashion with copyright. Published in September of 2006, the article jumps to the major question of copyright and fashion, is fashion an art worthy enough of copyright protection? The confusion lies in what makes fashion design different from writing, from other arts? The major difference is that the fashion design industry is a multi billion dollar industry whose fire is almost counterintuitvely stoked by the knockoff industry. Even with knockoffs aside, the fashion industry is plagued with the obvious copiers who claim to reference other works for inspiration.

The article continues to discuss how fashion design "has historically fallen outside the scope of copyright protection because it was considered a craft, not an art, dating back to a time when clothing served to simply cover the body." However, a new movement of high-end designers going to D.C. to lobby for copyright protection in fashion design has many people involved in the inexpensive recreation of fashions business worried. Besides obvious faults in lack of protection in fashion such as knockoffs and poor recreation of designs that could soil a brand's name, lack of protection has a huge effect on small or new designers trying to create a following. A proposed law would help to protect fashion designs in all mediums, shoes to shirts. Ultimately, the article concludes with a question, will copyrighting really change the fashion industry?

This article supports the my thesis as it expresses concerns in the fashion industry in regards to the implementation of copyright laws. As seen from both sides, both designers and those who knockoff will be equally advantaged and disadvantaged. It supports the notion that the fashion design cycle is ultimately not phased by knockoffs as it continues to grow to be one of the most lucrative. It is supportive of my thesis in that the article argues clearly that the what can be constituted as art versus craft and creative versus pirated is all in such blurred region.

Congress considers fashion's copyrightsB -B BusinessB -B The Washington Times, America's Newspaper

Palank, Jacqueline. "Congress Considers Fashion's Copyrighs." The Washingon Times.

28 July 2006. http://www.washingtontimes.com

This article, written by Jacquelin Palank starts with the interesting juxtaposition of lawmakers fighting against piracy in the fashion industry while knockoffs are being sold only blocks away.The article focuses most intensely on the fact that the introduction of more advanced technology into the fashion design industry makes knockoffs and piracy so omnipresent that it has begun to hinder the progess of creative design. Beause of the huge numbers financially produced by the fashion industry, most people are reluctant to support or deny copyright protection to fashion desing, finding it to be almost a moot point. The multi-billion dollar industry is supported by counterfeited designs in many different countries, however, the most staggering proportion of goods that are pirated come from China. "About two-thirds of the value of all counterfeit goods, which include apparel and handbags, seized between Oct.1, 2003, and Sept, 30, 2005, by U.S. Customs and Border Protection were from China."

Palank continues to iscuss how the fiscal side of the fashion industry makes most lawmakers reluctant to grant protection rights as well as fight for those protection rights to be granted at all. "A fashion trend analyst said the industry thrives "because of, and not in spite of, a lack of copyright protection." Because of the somewhat "ok'd" sharing of designs and ideas and the ability for designers to forecast what will be the style for next season, it is difficult to pinpoint acts of piracy. Palank briefly discusses EU laws on copyright and piracy and cites designers who influence stores such as Zara and H&M to create "looks for less."

This article is very important in terms of support for my thesis as it discusses the effect of advanced technology on the fashion design industry. As Palank briefly touches upon substanital similarty and the buyer's market, as well as the fiscal developments in the fashion design industry, the article works as support for arguments in my thesis.

Copyright Act of 1976

Fashion Victims

Raustiala, Kal. "Fashion Victims." The New Republic Online. 15 March 2005.

7 November 2006. http://www.tnr.com

This article by Raustiala supports the notion that copying does indeed drive the Fashion design cycle. Without copying, there would not be the quick turnover to create new fashions, new designs, new prints. Raustiala, a well regarded speaker in regards to copyright says that regarding the fashion industry and it's what-would-be copyright protection, "Fashion's paradoxical relationship to piracy could be written off as a minor aberration (though the apparel industry in the U.S. alone is a $100 billion
enterprise)." Raustiala talks about how some wish to wear fashions of exorbitant prices because the wearer knows no one else has what they are wearing. Whether it be bags, shoes, dresses, or jewels, all mediums of fashion or pirated and copied with hope of creating a stir and cash influx on different financial eschelons.

Raustialia cites a sensitive argument in regards to the steady growth of protected articles under copyright law, saying, "they place far too much into private hands and unduly shrink the public domain--that is, the set of songs, inventions, books, and so forth that are freely
available for all to copy." Without a selection of things to identify as part of the public domain, anything created or produced is automatically game for copyright infringement. As the public domain shrinks, the examples of piracy only grow. Technology has aided piracy, allowing a design to be copied so quickly as to give very little time for the original design to be shown. The current situation in fashion copyright has equally strong upsides and downsides, Raustiala says, "the current situation works too well for too many players."

This article is very important to my thesis and argument. It adequately describes both sides of the argument as well defending and opposing the "fashion victims." Raustiala speaks about the process of creativity and how it is augmented by knockoffs, it speeds the process. His article helps to support my thesis in that with or without copyright protection in the fashion industry, the place of copying and intellectual and creative piracy affects the industry in both positive and negative ways.

JSTOR: Proceedings and Addresses of the American Philosophical Association: Vol. 58, No. 3, p. 505

Issues in the Profession, Questions and answers on copyright law

LexisNexis(TM) Academic - Document

Coach Leatherware Company, Inc., v. ANNTAYLOR, Inc., Laura Leather Goods LTD., A & R Handbag, Inc., and Ron's Elegance Center, Inc.

No. 90 Civ. 3458 (KTD). United Sates District Court for the Southern District of New York. 8 November 1990.

The case of Coach Leatherware Company, Inc. versus ANNTAYLOR, Inc. and three other plaintiffs was settled in the District Court of New York. Filed in November of 1990 and then appealed at a later time, the case was one of the first publicized cases regarding copyright and piracy. Though the case was considered to be an argument of knockoffs and "confusion in the marketplace," the case is now more important than at its time of filing. The court document claims that Coach "commenced this action for trademark infringement and statutory and common law unfair competition" which now would be grounds for a suit on copyright infringment as the items that were claimed to have been infringed upon are not currently covered by trademark protection. The case cites many other cases of different fashion infringement suits as well as the copyright acts and the Lanham act.

The case describes the articles that were copied or "knocked-off" in detail. Although two aspects were discussed that were trademarked and protected, the name tags that say "Coach" and a series of brass fastenings also trademarked to Coach, many other things that company was suing for were not protected by trademark. Coach claims that "It's not a Coach Bag without a Coach tag." Coach wanted reimbursement for copies of bag shape, handle shape, colors, and style. Because the case was heard withiout evidence as both sides
agreed to introduce the case without exhibits, the defendants were both sure and unsure of their place as copyright offenders. Copyright law was not widely argued at this time for this case, however, it is obvious after reading the case that copyright law protection for fashion and design would have been supportive of argument.

This case is an excellent piece of supportive evidence for my thesis. The case, which defends piracy in fashion design, cites other important cases as well as U.S. Copyright office material and the Copyright Act of 1976, as wel as the Lanham Act. By including these resources, the case is pliable and easy to understand. It is also very applicable to my argument in that it ultimately agrees that the line is blurry between what can be considered public domain and shared versus artistic creativity and genuiness of design.

O.K., Knockoffs, This Is War.

Wilson, Eric. "O.K., Knockoffs, This is War." The New York Times. 30 March 2006.

This article is mostly about the "anti-copying" movement going on in D.C. Published in March of 2006, the author, Eric Wilson, comically and carefully discusses the world of copyright and fashion. With many quotations from famous designers like Zanotti, Von Furstenberg, Zac Posen, and others, Wilson identifies the hopes and fears of fashion designers and IP lawyers everwhere.

Wilson opens his article with talk of the "Splurge vs. Steal" columns in many contemporary fashion magazines, and his example, Marie Claire. Wilson implies that showing a runway look and a knockoff look that is incredibly less expensive is just the kind of media behavior that leads major designers to wage a full out war against knockoffs and those who create and buy them. Wilson talks about the Council of Fashion Designers of America, a new council and a movemet in the anti-copying campaign in D.C.

Of the Council and their aims Wilson says, "But for the Council of Fashion Designers the issue is black and white." Rather than calling imitation the sincerest form of flattery, as they have done for decades, leading designers are acknowledging that inexpensive copies — which they label acts of piracy — have negatively affected the luxury business." Luxury versus affordable has always been a dichotomy in the fashion industry, and without it, the classes of fashion would merge into a mess.

Wilson continues to discuss European laws on fashion copyright. The European Union has become more involved in fashion copyright protection and has extended a hand to designers from its member countries. Wilson also revisits the 1930's through the 1960's when stealing of patterns and designs was as omnipresent as fashion itself. Wilson closes his article with the argument of all things that should be protected, fashion should be protected by copyright law now becuase of the "disposable income" that most members of society now have. Thus, the importance of councils like the Council of Fashion Designers are necessary inorder to keep balance in a industry where piracy is as well accepted as season by season clothing style change. It is no longer desire, its necessity.

This article is very important to my thesis because it talks about fashion designers taking piracy and the lack of protection for fashion design to th D.C. to have their voices heard. Wilson cites interesting examples including fashion magazines that feature "steal v. splurge" pieces to help its readers obtain highfashion looks for affordable prices, however, willingly or unwillingly supporting the place of piracy in fashion. Wilson talks about the effects of copying and piracy on the "luxury" of the industry and in regards to my thesis, there would be an effect of sorts if fashion was not protected by copyright and vice versa.

The Piracy Paradox: Innovation and Intellectual Property in Fashion Design

Raustiala, Kal and Christopher Sprigman. The Piracy Paradox: Innovation and Intellectual Property in Fashion Design. Research Paper No. 06-04. UCLA School of Law. January 2006. http://ssrn.com/abstract=878401.

This long paper was written by Karl Raustiala and Christopher Sprigman. Ninety pages in its entirety, it is a thesis on IP law and Fashion Design. This paper is perhaps the most important piece on IP and Fashion Design to come out recently. The essay opens with a strong paragraph, the authors write the following.

"Advocates
for strong intellectual property (IP) protections note that scientific and technological
innovations, as well as music, books, and other literary and artistic works, are often
difficult to create but easy to copy. Absent IP rights, they argue, copyists will free-ride
on the efforts of creators, discouraging future investments in new inventions and
creations. In short, copying stifles innovation."

This idea that "copying stifles innovation," is not new and not only limited to Fashion Design. The same proverb applies neatly to writing, music, art, dance, film, anything that stirs the creative. The authors continue and say though trademarks are well protected, copying of designs are everywhere. The fact that the fashion design industry continues to put out new designs and accessories at an incredibly fast pace and seem unaffected by the copying defies what the authors call "standard IP theory." " The standard theory of IP rights predicts that extensive copying will destroy the incentive for new innovation. Yet, fashion firms continue to innovate at a rapid clip, precisely the opposite behavior of that predicted by the standard theory."

The sources cited in the paper are both common and uncommon, clearly related to fashion design and copyright while others take a more general role in explaining the place of public domain and free thoughts. The paper also shoes some pictures of examples of what would be copyright infringement and how it differs from trademarks. The authors continue to explain thoroughly the place of IP in fashion design and instances where copyright protection would have been beneficial. The paper also plays its own devil's advocate, denyin it of copyright protection, claiming, if the fashion design industry is so profitable now, why protect it? The continue and talk about the fashion cycle, the thought process to the pen, the pen to the paper, the paper to the catwalk, and then to closets around the world.

They come to a close, discussing how can fashion not be ubiquitious when all magazines do is analyze what is the hottest boot this season or the way to wear layers without looking like you are in hiding. "Indeed, IP law fails to protect the
core of fashion, the design. Despite this lack of protection, the fashion industry continues
to create new designs on a regular basis. The lack of copyright protection for fashion
designs has not deterred investment in the industry. Nor has it reduced innovation in
designs, which are plentiful each season. Fashion plainly provides an interesting and
important challenge to IP orthodoxy."

This paper is incredibly important to anyone researching copryight in any medium. Incredibly well written and supported clearly with pertinent sources, the paper helps to explain why the lack of IP protection in certain areas exists and how, if ever, fashion could be protected by IP law. The paper is very important as support for my thesis. It talks about the fashion-knockoff cycle and the inability to draw the line between piracy and authenticity. This paper is heavy on defining different processes in the fashion world and helps to clarify the important role processes play in the one-day inclusion of fashion design into copyright legislature.

U.S. Copyright Office - Protection for Fashion Design

Statement of the United States Copyright Office to the Subcommittee on Courts, the Internet, and Intellectual Property, Committee on the
Judiciary: Protection for Fashion Design. H.R. 5055. 27 July 2006.

The statement of the US Copyright Office on Protection for Fashion Design, a possible ammendment to Title 17 to include fashion design in copyright, is imperative to the study of Fashion Design and copyright. Released in late July of 2006 and passed by the House of Representatives, the statement talks about how the pending consideration of fashion design into copyright law has been lasting for years. The limbo-like place of fashion design in intellectual property was given no end in sight as the office decided that at this point in time, not enough information had been presented to implicate the need for protection.

The office compared the necessity of copyright protection in fashion to that of the design of vessel hulls. The Vessel Hull Design Protection Act is considered "sui generis" or being something entirely of its own. It is included in Chapter 13 of Title 17, which encompasses most of the copyright law. Thus, "While the form of protection offered in chapter 13 is in many respects similar to the protection offered by copyright law, it is nevertheless a sui generis regime distinct from copyright law." The proposed legislation of H.R. 5055, or the act to amend Title 17, is said to warrant protection, however, the type and the amount are all pending more information. The statement runs through quick answers to many posed questions and breaks down what would be the law if passed and how it would change fashion now. At the end of the statement, the question, "should fashiond esign legislation be enacted?" is posed. The statement answers the question saying, "the Office does not yet have sufficient information to make any judgment whether fashion design legislation is desirable." The statement ends with the positive interest in hearing more testimonies and reasons that could effect the balance of copyright and help to make the case for fashion protection stronger.

This pieces is invaluable to my thesis. As it pertains completely to my topic, the statement from the U.S. Copyright Office allows me to shape my argument with its support. I have found the lay out of the statement as well as the summaries of previous statements and the positive suppport of proponets and their thougts on the situation to make this piece incredibly supportive of my argument. It is supportive by demonstrating the multiple angles of the situation and although it has not be passed yet, the nature of the bill allows a supporter to be comforted by the legal acknowledgement of the need for protection in the fashion industry.