“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.

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.