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Fashion Design: What is the Best Way to Protect Fashion?

Since the 1920's fashion has been copied in one form or another but it is not until recently that designers are taking a stand and trying to seek protection for their hard work. But what form of protection is available for their fashion design? Copyright, trademark, or patent laws? These are all methods in which parts of fashion design are protected but none of these intellecutal property laws grant protection for an entire fashion design. If laws are changed to include fashion design protection which method would provide the best protection? Also, how would this affect those who have based their career on "knockoffs"? Is there one law which provides a better form of protection or should the United States adopt laws currently used by France or the United Kingdom? Some believe that if fashion designs are protected by copyright laws then this will alleviate the uncertainty in the fashion industry of what is right and wrong. Copyright currently does not protect fashion but the proposition to change Chapter 13 Article 17 of the U.S. Code to protect fashion designs has the ability to change the fashion industry.

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

Jennifer Mencken wrote this article in order to discuss the protection of fashion designs through copyright and the negative economic impact copyright protection could create in the future. The main point of this article is to discuss how fashion piracy affects the economy and to see if protecting fashion through copyright is really worth it. Fashion is a billion dollar industry and even though fashion designs should be protected, Mencken argues that this might harm the economy. Through the increasing discussion of fashion through news, magazines, and television, people are becoming more and more aware of certain designs. Even though people are becoming more into fashion, it’s because of this that design piracy is so popular. As designs become more popular, the more a designers’ work is replicated, allowing people to have more access to fashions. The main idea of this article is proving that copyright is the best means of protection for fashion design. The other methods of protection are mentioned briefly but the article spends a lot of time deliberating the issues involving copyright law. Mencken argues that there is a “conceptual separability of fashion’s artistic elements from the functionality of clothing.” The article describes the requirements for implementation of copyright law towards fashion designs. Changes need to be made to current laws in order to diminish the confusion between a fashion’s artistic elements and its functionality. Even though the article argues that through protecting fashion designs the economy will be negatively affected, protection should still be granted. Who is to decide what the best methods of protection are? The basis for granting copyright protection lies in awarding the author a moral right to his creation. A garment design copyright only punishes the pirate, who deliberately copies the design, while benefiting the true creators and the public.

Mencken’s article will be useful towards my paper by providing reasons why copyright might be the best method of fashion design protection in addition to providing the negative realities of copyright. It will also provide me with the economic realities involved with fashion piracy. Piracy drives the fashion industry and if there were restrictions placed on fashion works how would this affect the economy? This article will help me answer this question.

Can Fashion Be Copyrighted?

"Can Fashion Be Copyrighted?" The Wall Street journal [0099-9660] 248.60 (2006). B1-.

Can fashion be copyrighted? This article tries to answer that question through arguments for both sides of the debate. U.S. designers are trying to push legislation which would protect their designs but “the odds of passage are slim.” The authors try to answer the question, “is fashion design an art worthy of protection or a craft whose practitioners can and should freely copy one another?” In trying to answer this question, the authors provide the arguments of both the designers and those creating copies of designs. The “piracy paradox” is mentioned to show that by copying fashions it allows for trends to develop more quickly so if fashion was protect, the life cycle of fashion would be very slow. However, if this occurs then it could potentially harm individual designers. There is a paradox as to what is more beneficial, protecting the individual designs or the pace of the fashion cycle? One side argues for the creation of knockoffs as a means of allowing multiple types of people to participate in the trends because they are created at difference price levels. The other side argues that designers will not want to spend as much time or energy coming up with new designs if their work will just be copied. Is there a way to protect the fashion designs while keeping knockoffs around? The legislation proposed for protecting fashion designs would result in legal battles in which a designer can sue those they believe infringed their copyright. Is there a place for knockoffs while at the same time is it possible to protect fashion? The confusion exists in what makes fashion design different from other forms of art? The recent movement of high-end designers pushing for copyright protection would argue that fashion is a form of art which deserves to be protected. However, one has to ask themselves if fashion is copyrighted what are the implications of this on the fashion industry as a whole? Is the protection of a few designers worth the desertion of knockoff designers who create cheaper designs based on high end fashions? These are questions I would like to answer in my final paper and this article stirs these kinds of questions by presenting the piracy paradox. Also, 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. As a result, is there even a need for fashion protection?

Clothing Design Protection Pitfalls in United States Law

Briggs, Anne Theodore. "Hung Out to Dry: Clothing Design Protection Pitfalls in United States Law". Hastings communications and entertainment law journal (Comm/Ent) [1061-6578], p. 1-49.

“Clothing Design Protection Pitfalls in United States Law” discusses the three methods of protection of fashion under current IP laws as well as suggestions for future protection. Existing copyright law is insufficient to address the needs of the clothing design industry. This article discusses the shortcomings of current patent, copyright, and trademark laws with respect to clothing designs; reasons why design legislation has often been introduced in this country but never enacted; and finally, argues that the enactment of clothing design protection laws would benefit both U.S. consumers and clothing designers. The copyright section of the article explains the significance of the “Useful Arts Doctrine: Section 113 of the Copyright Act” which says that there is an important exception to the protection of works in the pictorial, graphical, or sculptural categories. Since clothing is considered a useful article, the only way it can be protected under copyright is if it meets the separability guidelines, which is difficult to prove. One way the article tries to get around this idea of separability is by arguing that the fashion is a form of art. Copyright is the most appealing method of protection because works do not need to be registered to be protected; there is a limited scope of copyright protection. Trademark is considered to be a better form of protection by some because it already protects portions of fashion design. Also, the time frame in which a work is protected by trademark can sometimes be unlimited. Through trade dress under the Lanham Act, which functions as an unfair competition law for unregistered goods, entire designs could be protected if they meet three criteria. The second most appealing method of protection after copyright law is the “sui generis,” a form of design protection. However, the most common argument against design protection is that strong design protection will significantly increase the cost of ordinary consumer goods. The article calls for an expansion of the Copyright Act to include protection for clothing designs because it would give the US a change to revive the apparel industry and eventually compete with current fashion forward countries such as France, England, and Italy. By outlining the difficulties in obtaining protection for fashion works, this article highlights the need for an expansion of the copyright act to apply to clothing design, which will significantly inform my paper. By going into great detail about the implications of copyright, trademark and “sui generis” it will help me fashion my paper and provide background for the best form of protection.

Common Law Right and Publicity and Fashion

Hetherington, Samantha L. (2001). "Fashion Runways Are No Longer The Public Domain: Applying the Comon Law Right of Publicity to Haute Couture Fashion Design". Hastings communications and entertainment law journal (Comm/Ent) [1061-6578], p. 1-33.

Fashion designs are said to be protected by one of three methods: copyright, trademark, or patent laws; however, Hetherington argues that none of these methods are useful in protecting fashion designs. “Under present U.S. intellectual property law, clothing design is not protected by federal copyright, trademark/trade dress, or patent law.” There have been many attempts by fashion designers to protect their work through trade dress or copyright, “approximately 74 attempts since 1910,” but these methods have proven to be unsuccessful. The reason being that these methods do not address the main problem fashion designers face, “the time and creativity designers invest in a new design.” Hetherington proposes utilizing the common law doctrine of the right of publicity or personality which is already used to protect individuals’ privacy. Copyright, patent and trademark laws are all used to protect some piece of a design but none protect the entire piece. The article goes into depth about the weaknesses of each method of protection which leads to the author’s main point that common law is the best method of protection. “If a singer’s performance style or a race car driver’s car can be legally protected as extensions of the individual’s public identity,” why can’t fashion designs be considered the same thing? Designers would sue for common law misappropriation of elements that capture the fundamental feel of his or her original fashion works. By having a designer assert his right of publicity, this would prevent knockoffs from taking the designer’s essence and profiting from it. This method would prevent identity theft as well as stimulate competition within the market. However, there are some obstacles with this method which include, most importantly, the “preemption by federal intellectual property law.” But the advantages to this method of protection are extremely promising; they include increased competition, more choices for consumers, as well as more choices within each income level. Designers as well as consumers can benefit from this form of protection. I will use this article to propose using common law to protect fashion designs instead of copyright or trademark which seem to be the most obvious means of protection. The most proposed solution for protecting fashion is through copyright but this article will help to show that copyright might not be the only effective way of protection.

Designers Seek to Prevent Cheaper Knockoffs

This is an article from the Wahab & Medenica law firm's media blog which deals with issues of intellectual property. This blog entry explains the significance of emerging laws in response to the growing trend of copying fashion designs. Designers have been trying even harder these days to protect their works and as a result Congress proposes a new method. The Design Piracy Prohibition Act proposes a limited three year term for fashion designs that commences upon whichever is earlier the date of publication of registration or the date the design is first made public. Under this act the term fashion is defined broadly to include everything from handbags to footwear. The blog goes on to explain the current status of Copyright laws in regards to fashion design. Two cases are presented in order to challenge the issue of the functionality hurdle which designers face when trying to protect their work. The most important case is the Kieselstein v. Accessories by Pearl in which the court granted Kieselstein the right to copyright the design of the belt buckle. Even though this is a step in the right direction for fashion protection, there are no cases which deal with the protection of garments of clothing. The United States does not protect fashion designs but France and England do and this article suggest that the United States should follow their lead. The proposed Design Piracy Prohibition Act will follow in the steps of the E.U. regulation which currently protects fashion designs in the form of registered and unregistered community designs. This new act will address the copycat culture which has grown tremendously within the fashion industry. Even though the act will protect the original designer, it will severely restrict a designer's ability to emulate the styles of others. The importance of this article to my thesis is the proposition of an alternate method of fashion protection, The Design Piracy Prohibition Act. Even though this act has not been passed yet, the blog explains what might happen if it is passed as well as provides background information about the act itself.

Fashioning Protection: A Note on the Protection of Fashion Designs in the United States

Tsai, Julie P. (2005). "Fashioning Protection: A Note on the Protection of Fashion Designs in the United States". Lewis & Clark Law Review, p. 1-33.

“Fashioning Protection” goes into great detail as to why fashion designs should be protected in the United States. The author does this by explaining the background associated with fashion and protection as well as explains the different methods that can be used to protect fashion designs. The article is divided into three parts which include, the current state of intellectual property protection for fashion designers, reasons why fashion designs should be protected, and propositions for viable options for fashion design protection. “Design piracy is legal under present U.S. law;” this leads to a decrease in motivation for fashion designers as well as profit. Fashion designers work hard to provide the consumer with original fashion designs, so why should their hard work go to waste when someone else can come along and copy their designs? As of right now there are no laws protecting the whole fashion design, only those protecting specific elements of a design, such as a logo. The implications of not protecting fashion works is that in the future, designers might not have the motivation to create innovative works as a result of the decrease in importance of their work. The article introduces cases where design piracy occurs and companies profit, A.B.S. is a prime example. A.B.S. is a business created entirely around copying the creations of other designers. Protection for fashion designs in the United States can be achieved through one of three methods, copyright, patent law, or trademark, but which is the best method. This article goes into great detail about the pros and cons of each method and eventually comes to a consensus as to which method is the best form of protection for fashion designs. Trademark protects design logos such as “the Ralph Lauren polo player, the “LV” mark on Louis Vuitton products, and any other mark.” Trade dress, under trademark, refers to products overall appearances in which there are elements that identify the product’s source. The problem is that “fashion designs have a short life span,” which makes it hard for articles of clothing to be distinctive. Design patent can be obtained for “useful inventions and original designs for articles of manufacture.” These protect the way an article looks, but to acquire these patents, designs must prove that they are nonobvious and nonfunctional. In order to acquire a patent, the process is lengthy and costly and since fashion designs have a short life span, by the time the patent is acquired, the design won’t need to be protected anymore. In order to be protected by copyright law, which protects “original works of authorship fixed in any tangible medium of expression,” fashion must pass a test of physical or conceptual separability. This creates a hurdle for fashion design protection because clothes are useful and as a result cannot be protected by copyright. Even though there are problems with all three methods of current fashion protection, something still needs to be done in order to protect fashion designs. The article’s recommended solution is to follow the model the European Union offers for protection in the form of registered and unregistered Community Designs. This article is a basic outline of my argument. It goes into a lot of detail as to the importance of protecting fashion through either copyright, patent law, or trademark. Also, it discusses the differences between the different types of protection for fashion designs along with the pros and cons of each method.

O.K., Knockoffs, This Is War.

"O.K., Knockoffs, This Is War." The New York times [0362-4331] 155.53534 (2006). G1-.

Many designers debate the issue of whether or not fashion should be protected by copyright laws. This article compiles a variety of pros and cons on the matter of fashion protection. Although it might seem that there is plenty of evidence to justify the protection of fashion by copyright or trademark laws, this article takes both sides on the issues. Some argue that fashion needs to be protected in order to ensure the growth of the fashion industry as well as new designers. Designers such as Diane Von Furstenberg, Narciso Rodriguez and Zac Posen, along with the Council of Fashion designers of America, all argue that fashion should be included under the copyright act. They all argue that imitation has negatively affected the luxury business and they are asking lawmakers to support a proposed fashion design anti-piracy act. Why should books, music and other creative arts be protected by copyright laws, but not fashion. Half of the article argues that if a bill is passed protecting fashion, then there are going to be some major chances in the retail industry. But there are others, particularly those who have benefited from copying fashion designers, who argue that they are not “copying” others work, but they are simply deriving their ideas from similar works. Protecting designers under copyright laws can lead to further debates as to how to separate a duplicate garment from one simply inspired by someone else’s work or part of a fashion trend. The article mentions a very successful example of a designer who has made millions simply by copying designer dresses and making less expensive versions to sell to the public. A.B.S. by Allan B. Schwartz has created a business of copying designer evening gowns. He argues that “there is no such thing as an original design and all these designers are getting their inspiration from things that were done before.” However, the reason clothing design is not protected under copyright or trademark law in the United States is that it is considered foremost as a utilitarian item, not an artistic expression or scientific invention. This article is imperative to my argument because it gives examples of the negative implications of fashion design protection. Many articles only discuss reasons why fashion should be protected by copyright or other forms of protection, but there are very few which look at it from a different perspective. What will happen to those who have made their living based on copying other people’s designs? Will it affect their business and if so how much will they have to pay to keep their fashion designs? Also, are there clear enough boundaries when considering if something is an exact copy of something else or if it was merely an idea inspired by another fashion design? These are all questions which need to be answered before laws can be created to protect fashion design.

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.

The piracy paradox includes discussion on the “innovation and intellectual property in fashion design.” The piracy paradox essay is the most recent document expanding on the issue of fashion protection. While other articles in the past have brought up one side of the debate, mainly the importance of changing existing laws to protect fashion designs, this article goes into great depth about both sides of the argument. The fashion industry’s principle creative element is outside the domain of IP law. This article asks a very important question, “Why is copying in the fashion industry treated so differently from copying in other creative industries?” The author goes on to argue that copyright fails to deter innovation in the fashion industry because copying is not harmful to originators. Also, it explains how copyright functions as an important element of the apparel industry’s “swift cycle of innovation.” Another question answered is to what degree are IP rights necessary in particular industries to induce investment in innovation? The article is divided into three parts which include: a brief overview of the apparel industry, induced obsolescence and anchoring, and lastly, the broader implications of the fashion case.

Designs are frequently copied by retailers, such as H&M, which offers cheap copies of expensive fashion. Copying isn’t limited to retailers; magazines continually show examples of “splurge vs. steal” outfits. Also, copying is not limited to fashion as well, art, music, dance, and film are copied all the time but there are protections in place to protect an author’s work. The article talks about the new technologies which allow for the faster replication of fashion designs which leads to the swift cycle of innovation. Designers have to create new works at an even quicker pace nowadays to keep up with the current trends and create new trends in which people will want to buy. Even though the fashion industry has remained unaffected by the lack of protection, there is a standard IP theory which predicts that extensive copying will eventually destroy the incentive for innovation. This is one of the reasons lawmakers have been pushing to create some form of fashion design protection recently. This article is a great source for current, up-to-date information about the fashion piracy debate. Many important issues are brought up including, moving forward with fashion, the positive and negative impacts of fashion piracy protection, all of which are useful for my final paper in discussing what is the best method of protection and is it a viable solution. The explanation of the place of IP protection in fashion design and instances where copyright protection will beneficial is relevant to my final paper. This paper is defines the different processes in the fashion world and helps to clarify the important roles played in the one-day inclusion of fashion design into copyright legislature.

There is More Than One Way to Skin a Copycat pg. 1667 - 1696

The emergence of trade dress article discusses the importance of protecting fashion designs by means of trademark protection. Design piracy also known as “knocking off” is extremely prevalent in the fashion industry and as a result, actions need to be taken in order to protect those who create the original fashion designs. Copyright laws have been the major focus for trying to protect fashion designs; however, this article explains why trademark is the best means of protection. Copyright laws fail to protect the designers’ overall concept and most articles cannot be protected by copyright laws because they are useful articles. Fashion needs to be protected in order to ensure the continued growth of new and innovative designs. The fashion industry is a billion dollar industry but if there are not designers who are willing to spend their time creating new designs just to have them stolen, then the fashion industry will fail to create new designs. Fashion is considered to be a form of artistic expression by some, if this is true, then why is it not considered to be under the same laws as artwork or architectural works which were recently added to the copyright act. The article spends the first half discussing the failures of copyright laws in protecting fashion and it goes on to propose an alternate solution, trade dress. Trade dress is a “hybrid of trademark and unfair competition law.” “A product’s trade dress is the overall image used to present it to purchasers.” Trade dress came about as a response to the Lanham Act which requires that there must be proof of secondary meaning and that the product is not similar to another product. Two Pesos vs. Taco Cabana is presented as an example of a successful protection of trade dress which was used to protect the overall image and feel of a restaurant including the uniforms. Trade dress may be the method to combat fashion design piracy in the future. Until copyright laws are changed to include fashion, trade dress is the better way for designers to prove infringement. The importance of this article to my thesis is that it goes into great detail about the importance of finding another means of protection instead of copyright law. Instead of fashion protection through copyright, trademark might be considered to be the best form of protection, specifically trade dress. In my paper I am trying to figure out the best method of protection for fashion designs between copyright laws and trademark laws. This paper gives the side of trademark and through the example of Two Pesos, does a great job of explaining the distinctiveness of trade dress. Also, trade dress is presented as the best way to protect fashion designs as a result of it being easier for designers to prove that their designs were copied illegally.

U.S. Copyright Office and Protection for Fashion Designs

This article, the statement of the US Copyright Office on Protection for Fashion Design, is a possible amendment to Title 17 which would protect fashion designs under current copyright laws. If passed, many fashion designers will be positively and negatively affected by this decision. In the statement presented by the Copyright Office to the House subcommittee on Courts, they are asking for the protection of fashion designs under copyright laws. Congress has considered adding fashion as part of the “sui generis,” being entirely of its own, protection for a long time, but there is not enough information to reach a conclusion. The statement goes on to consider the lack of protection under the three branches of federal intellectual property protection – copyright, patent, and trademark. The problem with each form of protection is that they only protect certain aspects of useful articles. Copyright only protects articles if “such a design incorporates pictorial, graphic, or sculptural features that can be identified separately from the utilitarian aspects.” Design patents are expensive and difficult to obtain. While trademark does not provide general protection instead it protects “certain product configurations.” As a result of these barriers towards protecting fashion designs, a revised protection has been suggested in this article through extending Chapter 13 of the Copyright Act to fashion designs. Currently Chapter 13 protects vessel hulls through “sui generis.” The article goes through the various implications if Chapter 13 Title 17 is extended to fashion designs. The undecided place of fashion design in intellectual property was unfortunately not decided at the end of this article as a result of lack of information. However, there is still hope for fashion design protection which more information regarding the importance and the implicate need for protection.

This article is extremely important to my paper because it deals with current legislation which was proposed to extended protection to fashion designs. My paper deals with the different types of protection available to forms of intellectual property, including fashion, which are mentioned in the article. The article goes into detail about the three types of protection which I will compare and argue which is the most effective form of protection for fashion designs. Even though there was not enough information to grant fashion design protection under copyright laws, steps are being taken in the right direction to gather more awareness of the importance of protection as well as methods are being considered for the most universal form of protection.