subscribe to this page
Sprigman, Christopher. "Fashion Copyright, 'Corruption,' and the Unheard Consumer." Public Knowledge Blog. http://www.publicknowledge.org/node/1404. February 20, 2008.
Christopher Sprigman, author of the article, "The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, wrote this blog, which elaborates on the common corruption of the intellectual property lawmaking process. More specifically, he argues that fashion is fueled by the copying. Yet the CFDA, which is run by a select few elite designers, is advocating a stronger IP for fashion designs. The problem though, is that the CFDA is only run by a small number of high-end designers, and the majority of the other designers have no say in this. Furthermore, the CFDA pursues similar goals as famous industries in Hollywood becuase they give a large amount of money to them. This is why there are so many Congressman in favor of a stronger fashion IP - not becuase it is the right thing to do, but because they are given money for it. Therefore, this blog focuses on the Congress aspect of fashion copyright.
Although this source is a blog, the author, who is also the author of another one of my very important sources, makes many good points about why certain individuals strive for a fashion copyright, even though it may not be the best decision. In particular, the author talks about the influence the CFDA receives from pursuing a stronger IP, although it does not represent most designers' views. Therefore, this blog will provide me with more reasons explaining why it is wrong to place a copyright on fashion. I will also be able to utilize many of Sprigman's statements in the blog to support my thesis.
tagged fashion_copyright intellectual property by elizay ...and 1 other person ...on 25-NOV-08
"Can Fashion Be Copyrighted?; Designers Want to Halt Knockoffs But Some Say They Spur Sales; 'Few People Can Spend $4,000'" The Wall Street journal [0099-9660] 248.60 (2006). B1.
This article examines whether knockoffs actually benefit the fashion industry altogether. Some argue that these knockoffs actually help keep the fashion industry going because once a design is copied, it forces the designers to move to a new design. For example, Joel Paris is head of website Anyknockoff.com, which offers imitations of designer handbags. Paris claims that his website benefits the high-end designers because it promotes their designs. Moreover, Allen Shwartz, founder of the label A.B.S. by Allen Schwartz, explains that he makes knockoffs for those who cannot afford the real design. However, other designers disagree. One designer, Catherine Malandrino, claims, "If you're creative, you can design original designs that are affordable. You don't have to knock off what other people are creating." This article states that at present, only registered logos, brand names, and unique designs are protected, such as the Burberry design. But other designers are still allowed to copy cuts or shapes of different designs.
"Can Fashion be Copyrighted?" will help my paper because it has many direct quotations from different designers which can substantiate my thesis. It addresses the pros and cons of knockoffs in the fashion industry. This, in turn, will help me decide whether a fashion copyright is necessary or not.
tagged fashion_copyright knockoffs by elizay ...on 25-NOV-08
Hedrick, Lisa J.,Tearing Fashion Design Protection Apart at the Seams. Washington and Lee Law Review, Vol. 65, No. 1, pp. 215-273, 2008.
Lisa Hedrick's "Tearing Fashion Design Protection Apart at the Seams" discusses the possible consequences that may occur with the enactment of more effective fashion protection. More specifically, the paper points out the different proposals and bills concerning fashion copyright and protection and their effects on the fashion industry. Hedrick explains that copyright protection may not even be essential to make sure that innovation continues; annual sales in the US fashion industry increased from approximately 130 billion to over 200 billion over the past decade. Moreover, fashion protection could potentially create even more problems - if Congress enacts stronger protection, other creative industries, like food, furniture, and cars, may also request protection. Therefore, fashion protection may become the foundation for a big expansion of the US's intellectual property law. Hedrick also stresses the importance of "conceptual separability" in determining whether a product can attain protection. Conceptual separability is the expression that courts use to decide which parts of a product are qualified for copyright protection and which parts are not. This, however, has created confusing lawsuits and leaves most clothing designs unprotected. So despite several congressional attempts, effective protection for fashion and other products of design has never pulled through. Furthermore, Hedrick acknowledges that copyright for fashion is extremely difficult, especially for specific designs. Hedrick substantiates her point by quoting David Wolfe, a creative director for a fashion marketing and consulting company. He stated, "It is possible to create a new textile, a new print, but a new design is almost impossible because all we are doing in creating a new one is putting together existing elements in a different way" (241). Therefore, a key reason why fashion copyright is currently so feeble is because the qualifications for attaining the copyright is extremely difficult.
Ultimately, Hedrick explains that the fashion industry may thrive most effectively if Congress distinguishes fashion copyright laws and other similar types of protection from other industries such as food and furniture. Therefore, this paper will help me explain to my readers that because effective fashion protection is very difficult to achieve, it is better to have no protection than little protection. Thus, this will support my thesis, which argues that fashion copyright should not be enacted.
tagged fashion_copyright fashion_design protection by elizay ...and 7 other people ...on 25-NOV-08
United States. Cong. House. Subcommittee on Courts, the Internet and Intellectual Property Committee on the Judiciary. Testimony of Congressman William Delahunt, Hearing on Design Law- Are special provisions needed to protect unique industries. [Introduced in the U.S. House of Representatives; 14 February 2008].
This is the actual testimony of Congressman William Delahunt arguing in favor of the Design Piracy Pohibition Act, which is a bill that has been pending for quite some time in Congress. If passed, this bill will give all unique pieces of clothing three years of protection. In his testimony, Delahunt states that fashion counterfeiting costs US businesses a minimum of 12 billion dollars every year. He also says that because the fashion industry is expanding in the United States, more and more teenagers are pursuing fashion careers. However, with the growing piracy problem, these aspiring individuals will not be able to make their mark in the fashion industry because soon counterfeit and piracy will take over the industry. Moreover, he quotes Newsweek contributor Dana Thomas who stated, "Most people think that buying an imitiation handbag or wallet is harmless, a victimless crime. But the counterfeiting rackets are run by crime syndicates that also deal in narcotics, weapons, child prostitution, human trafficking, and terrorism." Therefore, he argues that if Congress passes the Design Piracy Prohibition Act, not only will it be highly beneficial for the fashion industry, but it will also help discourage crim syndicates and other illegal activities.
Although this source is against my thesis, which is against copyright on fashion, it is a very invaluable primary source that will allow me to acknowledge the other side of the debate in my paper. In doing so, it will make my argument against copyright even stronger because I will then state reasons why approving such a bill will still be unfavorable in the end. Furthermore, Delahunt makes several excellent statements about the fashion industry and the troubled economy at present that I will be able to address in my paper.
tagged act design fashion_copyright piracy prohibition by elizay ...on 25-NOV-08
“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.
tagged Fashion_Copyright by kcoleman ...and 1 other person ...on 28-NOV-06
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.
tagged Fashion_Copyright by kcoleman ...and 2 other people ...on 28-NOV-06
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.
tagged Fashion_Copyright by kcoleman ...and 1 other person ...on 28-NOV-06
“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.
tagged Fashion_Copyright by kcoleman ...and 1 other person ...on 28-NOV-06
Scafidi, Susan. Counterfeit Chic Blog,<www.counterfeitchic.com>.
Created by law school professor Susan Scafidi, Counterfeit Chic is a website that seeks to spark dialogue regarding fashion’s systematic exclusion from copyright protection in the United States. It investigates psychological and sociological explanations for the denial of protection to fashion and society’s ambivalent attitudes towards knock-off design practices. Counterfeit Chic also discusses the political, legal and technological side of copyright law as it applies to fashion design. Scafidi explains, “[counterfeit chic] is about the universal phenomenon of copying, and about the law’s limited response” (“about me”). In essence, Scafidi tries to capture the discourse surrounding copyright law protection for fashion works from a variety of perspectives.
In my paper, I plan to use a variety of Counterfeit Chic’s categories, including “Couture in Court,” “Legislation and Lobbying” and “Limits of Law,” to inform my discussion of the anti-piracy bill before congress and its potential ramifications on designers, consumers and the retail industry at large. I am also going to use sections like “Knockoff Newsbriefs” to gain an understanding of everyday examples of imitation designs and the public’s response.
Furthermore, the vast majority of research I collected for my paper comes from lawyers and professors and consequently takes a decidedly academic stance. I believe this website will give me a sense of what average people think about copyright policies and their application to fashion design, despite being written by a law professor, due to the website’s encouragement of user submissions and interactivity. For example, on the homepage, Scafidi writes, “Share pictures of your own Counterfeit Chic,” thereby demonstrating her desire for the website to represent the publics’ views and opinions on imitation designs and copyright protection ( “Post your Pics”). Scafidi also provides links to legal websites and defines copyright-related terms in an effort to educate website users about copyright law and the knock-off industry. Her goal is, in her own words to “start with a conversation” instead of “begin[ning] with an answer” (“Introduction”). I believe Scafidi’s website, Counterfeit Chic, succeeds in this endeavor.
tagged Fashion_Copyright by emilykg ...on 28-NOV-06
During the last five years of the copyright owner’s design right, any person can obtain a license to a fashion work, which enables him or her to “do anything which would otherwise infringe the design right” (p. 364). The copyright owner and the licensee determine the stipulations of the license together and in the event that they can not come to an agreement regarding the license terms, the Comptroller-General of Patents, Designs and Trademarks steps in to settle the dispute (p. 364).
The Copyright, Designs and Patents Act of 1988 also increased the duration of protection for works from 15 to 25 years and applied this period of protection to “designs of articles which are themselves designed as artistic works and which are exploited industrially” (p. 364). The act also eradicated the indirect copying doctrine (p. 364).
Under the French Copyright system, fashion works are explicitly protected provided they are original. French courts determine originality on a case-by-case basis and look at the works that inspired the creator to produce the current design. The period of protection lasts as long as the “design is capable of being effectively exploited,” which is often determined to be 18 to 24 months for fashion works (p. 365). It is under this system that haute couture has thrived and made Paris the “epicenter” of the fashion world (p. 365).
Hagin suggests that extending the U.S. copyright system to fashion design would result in substantial economic benefits. She recommends looking to the French and English models of copyright protection for fashion works for guidance while also tailoring the amendment to best suit the U.S. economy and laws (p. 368).
In particular, Hagin suggests that fashion works “be listed among the ranks of exemplary “original works of authorship” in section 102(a) of the Copyright Act” (p. 369). She proposes a Fashion Works Copyright Protection Act created by substituting in “fashion works” for “architecture” in the Architectural Works Copyright Protection Act of 1990 (p. 370).
This article will add to my paper by describing the protection policies other countries with successful fashion industries grant to fashion design. It is important to understand other countries’ response to copyright protection for fashion works in order to develop a policy for the U.S. that will benefit consumers, designers and the economy as a whole.
tagged Fashion_Copyright by emilykg ...and 1 other person ...on 28-NOV-06
They believe that knock-offs have harmed high-end fashion design practices and are unfair to the designers who devote substantial amounts of time, money and creativity to the production of original designs. Wilson explains, “in [designers’] view it is unfair for people like [owner and designer of ABS] Mr. Schwartz to profit from their work without a similar investment” (p. 2). Harper’s Bazaar Publisher, Valerie Salembier, described the imitation practice as “stealing at the expense of creativity” (p. 2). Clearly, many in the design business, particularly fashion designers themselves, feel wronged by the knock-off industry and are going to great lengths to support the anti-piracy act.
Opponents of the anti-piracy act believe that since there is a demand for both knock-off as well as original products, there is no need to restrict imitation practices. Lesley Jane Seymour, editor in chief of Marie Claire, which features “Splurge vs. Steal,” a column that highlights well-done knock-offs, compares the fashion industry to the food industry. She explains, “when you go to the Shop & Stop, you have the real Raisin Bran and then the generic raisin bran” and “both have their buyers” so “neither one has put the other out of business” (p. 2). In other words, opponents of the bill like Seymour believe that knock-offs and originals can co-exist successfully.
Wilson goes on to argue that the fashion’s exemption from copyright protection due to its utilitarian function is based on a legal principle that is no longer relevant now that technology allows for fast and cheap mass production of copies. Additionally, the retail business has changed over the decades and, with the advent of disposable incomes, fashion has developed into more of an art than a utility, as it once was (p. 3).
This article shows designers’ perspectives on the issue of copyright protection for fashion works and their strong aversion to the knock-off industry, which is not surprising given their vested interest in preserving the prestige and financial rewards of their original designs. I think it will be helpful to discuss the perspectives of fashion designers on the issue of fashion copyright and mention the majority of designers’ advocacy for the anti-piracy act in my paper.
tagged Fashion_Copyright by emilykg ...on 28-NOV-06
Tsai makes the argument that since fashion has begun to transcend its utilitarian purpose and become more of an expression of art, it merits the same protection from design piracy afforded to other art forms (p. 9). She cites the exhibits featured at the Guggenheim Museum and the Metropolitan Museum of Art, which display “works of art by fashion designers” like Giorgio Armani and fashion works worn by icons like Jacqueline Kennedy (p. 9).
Furthermore, museums like Japan’s Kobe Fashion museum dedicated to the exhibition of fashion have popped up around the world and show that “fashion designs are something more than mere useful articles” (p. 9). In fact, high fashion corporations have begun to mold their commercial stores into spaces that significantly resemble museums and high fashion designers have started collaborating with traditional artists to create new collections. A collection of handbags under the Louis Vuitton label created by artist Takashi Murakami and designer Marc Jacobs represents once such artist-fashion designer collaboration (p. 9).
In essence, Tsai believes that it is unfair for courts to selectively grant protection from piracy to some art works while systematically denying such protection to others that meet the “de minimis level of creativity”, such as fashion design (p. 9). She recommends that the U.S. model its design protection off of the European Union’s Community Designs policy, which protects fashion designs against piracy without long waits or high costs for the designer (p. 11).
I will use this article for my paper to represent the opinion that fashion is increasingly becoming an art form and therefore deserves copyright protection. The examples Tsai provides of fashion’s transformation from utility to art form, such as the exhibits at highly respected art museums featuring fashion and the new museums created merely to display fashion, substantially strengthen her argument.
tagged Fashion_Copyright by emilykg ...and 1 other person ...on 28-NOV-06
Design patents serve to protect the outward appearance of inventions. In order to obtain a design patent, an invention must be original, novel, nonobvious and ornamental (p. 4). The nonobvious requirement proves the most the most difficult for clothing designs to satisfy, as courts purposely set the bar high. For designs that fulfill all the requirements, the protection offered by a design patent is considerable. Design patents, however, pale in comparison to utility patents due to the expense and time involved to obtain one.
In fact, Congress purposely restricts clothing manufacturers’ exclusive rights to their products to prohibit them from monopolizing particular designs. They do this with the “useful articles” doctrine, which provides an exception to the protection afforded to “works in the pictorial, graphic and sculptural category” under section 113 of the Copyright Act (p. 6). Thet use a “separability test,” derived from the Mazer approach, “to determine whether the “pictorial, graphic, or sculptural” parts of the work can be either physically or conceptually separated from the utilitarian, functional parts of the work” (p. 7). Copyright law serves to protect only those parts that remain “artistic” even when separated from the whole work while failing to protect the work in its totality. More often then not, clothing designs fail to pass the “separability test” because the parts of the garment that require design, such as the neckline and the particular cut, cannot be removed from the clothing physically nor conceptually (p. 7).
In this article, Briggs is calling for an expansion of the Copyright Act to include protection for clothing designs. She believes that congressional fears of monopolies over designs are unwarranted. Furthermore, Briggs suggests that design protection laws could benefit both the fashion industry as well as consumers through the assurance that “their investment would be returned over a longer period of time” and the consequent reduction of prices for designs (p. 20). Finally, extending copyright laws to clothing designs would offer the US the chance to revive the apparel industry and eventually compete with European countries like France 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.
tagged Fashion_Copyright by emilykg ...and 1 other person ...on 28-NOV-06
Fashion designer Jeffrey Banks pointed to an incident in which an exact replica of a dress worn by “Desperate Housewives” star Marcia Cross emerged nationwide in department stores a few days after she unveiled the haute couture dress at the Golden Globes (p. 1). This bill would prohibit such practices and consequently protect new designers, such as Marc Bouwer, who made Cross’s dress, from design piracy. Additionally, it would ensure that U.S. designers receive “fair return on their investments,” according to Goodlatte (p. 2). Violators of the bill will face fines of $250,000 or $5 for each individual item copied, whichever amounted to more (p. 2).
Opponents of the bill claim that the fashion industry relies on the borrowing and re-mixing of design elements. Supporters of the bill debase this argument by referring to the success of the fashion industry even in countries that do provide copyright protection to fashion design, such as many European countries. University of Virginia law professor Christopher Sprigman cites Zara, H&M and Top Shop as European stores that sell “imitation designs” and continue to thrive despite copyright protections (p. 2).
The importance of this article for my paper is that it discusses the reaction of both supporters and opponents of copyright protection for fashion design to the bill proposed by Rep. Goodlatte. Additionally, the article presents a reasonable proposal for dealing with the issue of copyright protection for fashion works, which will be helpful in formulating an argument for my final paper.
tagged Fashion_Copyright by emilykg ...on 28-NOV-06
Cox, Christine & Jenkins, Jennifer. (2005). "Between the Seams, A Fertile Commons: An Overview of the Relationship Between Fashion and Intellectual Property". The Norman Lear Center, p. 1-18.
Cox and Jenkins begin by suggesting that the absence of protection for fashion design has not reduced the creative output of fashion designers, despite warnings that protection is necessary to fuel innovation. They state, “Creativity thrives in the absence of intellectual property protection” (Cox & Jenkins, 2005, p. 5). In fact, they believe that the fashion industry and its lack of copyright protection can help determine the most effective levels of intellectual property protection in other industries.
While increasing protection has been granted to various other industries, including the pharmaceutical, movie and recording industries, fashion design has notably been denied such protection. Fashion design has not received protection because clothing qualifies as both creative as well as useful, thereby classifying it as a “useful article” rather than a work of art (p. 6).
However, the denial of protection to fashion design has been a conscious decision on the part of courts and policymakers, who fear monopolies over designs will reduce competition among designers. One judge describes their position, “Congress and the Supreme Court have answered in favor of commerce and the masses rather than the artists, designers and well-to-do” (p. 7). In other words, Cox and Jenkins describe the courts as refusing protection to fashion design to keep costs down and make fashion accessible to the average consumer.
This paper takes a unique stance against the expansion of copyright law to apply to fashion design on the grounds that more protection and incentives for designers does not necessarily result in increased creative output or innovation. Instead, the ability of fashion designers to “borrow, imitate, revive, recombine, transform and share design elements without paying royalties or worrying about infringing intellectual property rights” serves as incentive enough for their creative production (p. 16). This process of re-mixing cultural elements is present in an array of other forms of cultural production, such as reoccurring movie themes. In essence, they believe in a bottom up model of cultural production whereby individuals should be free to borrow creative elements from a variety of sources to produce innovative works.
I think the bottom up model of cultural production presented in this article will significantly contribute to my paper by providing the opposite argument of most of my other sources. Furthermore, I think there is truth to the fact that the denial of protection to fashion design has been deliberate on the part of congress and not necessarily discriminatory, as many supports of fashion copyright seem to believe. Certainly, congress’s historical decision not to grant copyright protection to fashion works deserves consideration.
tagged Fashion_Copyright by emilykg ...on 28-NOV-06
It might not be long before the U.S. must add enact protection for fashion design in accordance to national treatment provisions like the Berne Convention and TRIPS Agreement of the World Trade Organization (p. 2). Hetherington suggests applying the common law doctrine of the right of publicity or personality to haute couture to obtain protection for fashion design as a plausible alternative to adding a chapter to the Title 17 of the U.S. Code (p. 3). She explains, “Under this regime, a designer would have a tort action against a design pirate for misappropriation of identity or intrusion on his or her right of publicity” (p. 3). Protection through the right of publicity assumes that designs contain the personality of the designers within them and therefore shape the designers’ public personas (p. 7).
If the right to publicity were to apply to fashion designers, the designer, not the corporation, would have the right to sue the copyist because it is a personal tort. The designer would be suing for common law misappropriation of elements that capture the fundamental feel of his or her original fashion works. In suing for misappropriation, the designer would seek damages that amount to “the fair market value” of his or her services (p. 12). Hetherington claims that “a designer’s asserting his right of publicity would not preclude the knockoff artist from making clothing, but would prevent the knockoff from taking the designer’s essence wholesale and profiting from it” (p. 12). Furthermore, the protection the rights of publicity would provide to fashion designers would stimulate competition within the industry. It would allow more designers to develop their own fashion identities and target consumers at all different income brackets.
This article suggests the use of a designer’s right of publicity as a means of protecting fashion works, an alternative solution to amending the copyright act. I plan to discuss the benefits and downsides of using this alternative means of obtaining protection for fashion design in my paper.
tagged Fashion_Copyright by emilykg ...and 1 other person ...on 28-NOV-06
Despite this, governmental protection for designs is imperative to encourage the continued production of high-end goods among designers, who feel financially insecure in the current knock-off culture. As a result, Nurbhai calls for an addition to Title 17 of the U.S. Code to protect fashion designs and provide incentives for designers to keep creating with the insurance of proper attribution and equity for their works.
In the current state of copyright law, apparel designs are denied protection as a result of their usefulness (p. 5). Nurbhai explains, “The prevailing opinion is that products, such as ladies’ dresses or any other industrial products, cannot be copyrighted if they do not contain some element that physically or conceptually can be identified as separable from the utilitarian aspects of the article” (p. 6). However this view is coming into question given the bizarreness of many high fashion designs, which often obscures the line between utilitarian apparel and purely ornamental costume (p. 10). Nurbhai states, “Style, rather than durability, is the dominant competitive factor in the fashion industry today” (p. 10). Classifying high fashion as useful articles misses the mark and inaccurately describes the role of high-end designs in today’s world.
In essence, Nurbhai believes that providing protection to fashion would motivate designers to continue producing creative output, thereby contributing to the “progress of science and useful arts” (p. 10). Furthermore, she finds it illogical to deny the fashion industry the protection that congress has afforded to many other industries and the protection granted to fashion industries abroad. To remedy this problem, Nurbhai suggests that congress look to France and the United Kingdom’s for copyright policies for garment designs to develop similar protections for fashion design within the U.S. (p. 11).
This article will contribute to my paper by illustrating the inaccuracy of classifying many fashion designs as utilitarian and the consequent need for an additional provision to the current copyright act that directly addresses fashion works.
tagged Fashion_Copyright by emilykg ...on 28-NOV-06
In particular, Kaufman discusses the Louis Vuitton Malletier v. Dooney & Bourke, Inc. case that arose in 2004 after Dooney & Bourke launched a new line, the “It Bag Collection,” which bared significant resemblance to Vuitton’s monogram design collection—the Murakami. Vuitton requested an injunction against Dooney & Bourke for unfair competition, dilution and trademark infringement (p. 537).
Although the judge denied the request for a preliminary injunction in order to avoid granting Vuitton a monopoly over an entire “look” of a bag collection, Vuitton pursued its claim of trademark infringement. To do so, they had to prove “the validity of its mark(s) and “a likelihood of confusion between its marks, as the “senior” markholder, and those of Dooney, as the “junior” markholder” (p. 550). Judge Scheindlin concluded that, as a result of their “‘inherently distinctive’ nature and established secondary meaning,” Vuitton’s Monogram Multicolore marks merited legal protection under the Lanham Act (p. 552).
To determine whether Dooney & Bourke’s mark would create confusion for consumers, the judge applied the Polaroid test, a multi-factor test created in the Polaroid Corp. v. Polarad Electronics Corp. decision. The tests consists of eight factors including “(1) the strength of plaintiff’s marks; (2) the similarities between the plaintiff’s and defendant’s marks; (3) the proximity of both party’s products; (4) the likelihood that plaintiff will “bridge the gap;” (5) the existence of actual confusion; (6) sophistication of consumers; (7) bad faith; and (8) the quality of defendant’s products” (Kaufman, 2005-2006, p. 554). Upon consideration of the these factors, Schiendlin ruled in Vuitton’s favor with his finding that Vuitton and Dooney’s bag collections would likely cause consumer confusion in the marketplace.
In all, Kaufman discuses this case to demonstrate the importance of copying within the fashion industry and the legal issues that surround it. She explains, “The case highlights the tensions and nuances between infringement and acceptable knockoffs, and illustrates the predicament of being a trendsetter as one without legal protection” (p. 538). To deal with this problem, the fashion industry distinguishes between counterfeit products, which are illegal, and knockoff designs, which are legal and “inevitable” in today’s trend-obsessed society, according to Kaufman (p. 566).
I will use this article to illustrate the intricacies of the current protection afforded to fashion design in my paper. Furthermore, the Louis Vuitton Malletier v. Dooney & Bourke, Inc. case exemplifies a typical copyright infringement lawsuit and shows the need for copyright laws that explicitly deal with fashion design.
tagged Fashion_Copyright by emilykg ...on 28-NOV-06
tagged Fashion_Copyright by emilykg ...on 28-NOV-06