U.S. Congress. House. Design Piracy Prohibition Act. 110th Cong., 1st sess., H.R. 2033. (25 April 2007).

This is one piece of legislation proposed to protect fashion designs from piracy. This Design Piracy Prohibition Act would basically give fashion designs protection for three years after the application for registration is submitted. Within this act, the terms fashion design, design, and apparel are defined so as to create a definition of what can actually be protected under this bill. The reason these are defined within this bill is the ambiguous nature of these words. Without a clear definition, there would be way too many interpretations of the clauses of the Design Piracy Prohibition Act. The bill also states the terms for submitting a design for copyright protection. Basically, any rights to protection are lost if the design is not submitted within three months after the design is made public. The bill also briefly lists the monetary penalties for any pirates if found guilty of copyright infringement.

This bill is an important source for any paper on fashion copyright since it provides an example of the types of legislation that would supply design protection. Even though this bill has not gone through, many of the Design Piracy Bills follow this basic structure for fashion copyright. Therefore, this source provides an example of how effective bills can be in providing protection. In addition, many sources reference this bill and its contents. So, it is useful to have the actual bill and its wording to look back upon and analyze as a primary source. The bill basically amends title 17 in the United States Code to provide for fashion design protection. By looking at how proponents of fashion copyright will protect fashion designs, I can decide, within my paper, whether these laws are beneficial or effective enough to even bother enacting. Thomas, the site where this bill is located, also provides a list of sponsors for this bill. There are only fourteen sponsors, which creates suspicion as to how effective or plausible this bill may actually be. Information like this surrounding pieces of legislation make bills useful sources.

U.S. House of Representatives, Committee on the Judiciary, Subcommittee on Courts, the Internet, and Intellectual Property. Testimony of Steve Maiman in Opposition to H.R. 2033. 14 February 2008.

This source is the testimony of Steve Maiman, co-owner of Stony Apparel, against the Design Piracy Prohibition Act. Maiman is completely opposed to extending copyright protection to fashion design. According to Maiman, fashion has grown into a huge, thriving, competitive industry without any help from copyright protection. Nothing has changed recently within the fashion industry to suddenly need copyright protection now. He claims that enacting bill H.R. 2033 will be detrimental to the fashion industry and economy, reduce creativity, and hurt the consumers. He speaks against fashion design protection proponents by stating that customers in fancy boutiques are willing to pay more for apparel despite pirates creating imitation designs. He then addresses the negative consequences this bill will have on the fashion industry, especially firms like Stony Apparel. This bill will make financing firms extremely difficult since retailers will immediately return anything claimed, even falsely claimed, to be infringing. Invoices would become meaningless. Since retailers would also be held liable with this bill, retailers would refuse to do business unless the manufacturing firm can provide compensation for any possible loss. This new demand for compensation will create an even larger finanacial risk for manufacturers and retailers. The fashion industry is already an area filled with risk and this bill will simply add another layer of risk since everyone will have to now deal with the possibility of frivolous law suits. This fear of infringement will lead to an increase in the prices of apparel since designers will need to hire lawyers to interpret their every design out of fear of suit. In addition to price inflations, the innovation rate would slow down. However, the biggest consequence of this bill would be the effect on designers interpreting a trend. If designers are too scared to work with a trend, one of the biggest methods the industry uses to attract consumers will be cut off. This bill will only aid rich, established designers who can afford lawyers. However, the young generation of rising designers with fresh, new ideas will disappear. Fashion copyright will hurt designers, consumers, manufacturers, and retailers. Only lawyers will benefit. Benefitting lawyers is not worth splitting America into a class that can purchase copyrighted clothes and a class who cannot afford to anymore.

This is a very crucial source since it provides a primary account of a fashion manufacturer. Since it is a primary source, it provides real concerns plauging manufacturers and store owners within the fashion industry. Maiman actually has to deal with the consequences of the bill. So, what he has to say comes from experience and is very reliable. Although he is obviously biased since he has a stake in the outcome of this war, his arguments arise from legitimate concerns he would have to deal with if this bill passed. Secondary sources are just opinions of people outside of the industry looking in. He basically structures his argument around the negative consequences of enancting the Design Piracy Prohibition Act. He also addresses the concerns brought up by the other side and then explains why these are unreasonable. By showing the possible consequences of going through with fashion copyright for players in the industry besides himself, such as consumers, designers, and retailers, he effectively makes his position against protection appear to be beneficial for the majority of the industry.

Picker, Randal C. "Of Pirates and Puffy Shirts: A Comment on the Piracy Paradox: Innovation and Intellectual Property in Fashion Design." Virginia Law Review, Forthcoming; University of Chicago Law & Economics, Olin Working Paper No. 328. http://ssrn.com/abstract=959727

This article takes the side of those individuals supporting the enactment of fashion copyright. This argument is made using past attempts at employing fashion copyright laws to protect designs and the results of these attempts. One major example used to support this claim of positive effects resulting from design protection is the Fashion Originators' Guild of America. This guild basically organized registration and monitoring for apparel with a threat of boycott of any retailer who sold knockoffs. The claim here is that this increased intellectual property protection resulted in greater innovation efforts. Although the Federal Trade Commission took down this organization, the article argues that the fact that it formed demonstrates that high end designers do want greater protection. This argument is made against other claims that the members of the industry do not even want increased protection. The argument then continues into the present time and the benefits these laws would endow on the fashion industry. With fashion design protection, high end designers can make credible promises to their consumers, which is impossible with the current amount of knockoffs in the market. With the ability to make credible commitments, high end designers could raise their prices and make more money off their original designs. Therefore, there is clearly a benefit to high end designers that accompanies increased protection. Also, the author argues that imitation in the industry is only one sided with the high end designers having to deal with the rapid imitation of their original designs. With copyright, these designers could promise their consumers that this rapid copying of the apparel they are buying would not occur. Basically, the author here argues that the rampant copying in the fashion industry is detrimental to the high end designers and their customers. Therefore, copyright protection is necessary to protect their rights and keep low end designers from exploiting the low protection regime of the fashion industry.

Although this source complicates my thesis by working against my claims that fashion copyright laws should not be enacted, sources like these are absolutely necessary to develop a strong paper. These claims will provide something for me to argue against and prove incorrect in my argument. Without addressing opposing opinions, the argument and paper would be weak. This article clearly utilizes an analysis of the high end or elite designers to support the claim for increased fashion design protection. However, it avoids looking at the effect of copyright laws on the rest of the fashion industry. However, it is still a useful source as it provides the perspective of a high end designer, the biggest victim of piracy or imitation.

Subcommittee on Courts, the Internet, and Intellectual Property, Committe on the Judiciary, U.S. House of Representatives. Design Law: Are Special Provisions Needed to Protect Unique Industries-Testimony of Fashion Designer Narciso Rodriguez.  14 February 2008.

This source is a testimony by Narciso Rodriguez, a fashion designer and board member of the Council of Fashion Designers of America. This testimony is in favor of HR 2033, the Design Piracy Prohibition Act. He first presents some astounding figures such as the annual loss of at least $12 billion in the fashion industry due to piracy. He then takes the audience or reader through an almost emotional trip by explaining all the training, hard work, and money that goes into becoming a designer. With all the time and money invested within the fashion industry, pirates are just making a risky business riskier. He then constructs an argument for fashion copyright using a sad, personal anecdote. In other words, he plays on emotions and moral rights to make his point. He basically recounts a story about an original design he made that was copied and sold by pirates millions of times. Without protection for fashion design, US companies arise with piracy as their business model. These companies can afford to make large quantities at low prices, causing more sales for the pirating companies than for the original designer. Rodriguez then suggests the positive results of enacting copyright. Pirate companies would be forced to hire real designers, increasing the job market for designers and creating a great choice of original designs for consumers. He admits that in the past clothing was a functional object and therefore did not require protection. However, he believes that fashion has now become an art that is no longer just utilitarian. He then addresses the other side's concerns by claiming that only truly unique designs will be copyrighted, not all designs. He also states that the three year protection period will simply allow designers to reach the market before the pirates. After these three years and with a large public domain still in existence, previous designs can still be used for inspiration. He also addresses the concern that this will increase apparel prices by claiming that accessibly priced clothing will still exist, but the creation of these derivative lines will be through the original designer. Through explanation like these, Rodriguez attempts to passify the concerns on the scope of the legislation of copyright opponents.

This testimony by Narciso Rodriguez is very beneficial since it is a primary source coming from an elite fashion designer. It provides the viewpoint of someone within the fashion industry. Rodriguez begins his argument with a very emotional approach regarding his personal experiences and losses due to piracy. After getting the audience's sympathy, he provides some positive benefits of enacting copyright. He concludes his argument by addressing the concerns of the skeptics of fashion copyright. Rodriguez is a biased source since he obviously can benefit if the copyright laws are enacted. However, his testimony provides some real insight into the minds of fashion designers and the actual issues they face due to piracy. Therefore, this article provides a better sense of the real problems plauging the industry and if these laws can actually address these issues. So, although this testimony may not support my thesis, it provides better issues to address and counterargue than secondary sources would.

Rangnath, Rashmi. "Design Protection for Fashion Design and Autoparts: A Bad Idea Times Two." Public Knowledge Blog. http://www.publicknowledge.org/node/1399. February 16, 2008.

This blog considers the design protection for fashion designs and autoparts in terms of markets and niches. In terms of fashion design, the author argues that knockoffs do not damage the market for original designs much at all. Obviously there is some effect on the original designer, but the author argues that this effect is negligible due to the different markets that original designs and knockoffs compete within. Customers who can afford to buy runway designs are going to buy these original designs regardless of how many imitation versions are circulating. This is because the people who are willing to pay so much for clothing want to be able to tell others they are wearing an original. For them, only the original can give them the status they desire. On the other hand, people who cannot afford these original designs do not care if their clothing gives them status. In actuality, these customers still would not purchase the original design if the knockoffs were not present in the industry. These consumers are fine with the lower quality imitation once the trend trickles down. For this reason, elite and original fashion designers have no need to lower their prices to compete with knockoffs and imitations. This is because these two versions are marketing and selling to two different groups of people. They are operating within two different markets. Finally, the blog ends with an attack on elite designers who claim pirates end up selling more imitation versions than the designers can even imagine to sell of their original. The author argues here that in the elite market, the designer can sell very few items at a incredibly high price while pirates may sell thousands of products, but at virtually nothing compared to the original's price. Therefore, the elite designers probably come out ahead in terms of profit. The author makes a correlating argument against autopart design protection, which does not apply to the topic of interest.

This blog was chosen as a source for my paper because it has a very unique approach in looking at fashion designs and their imitations. Rather than looking at the logistics of the fashion industry or as someone from within the fashion industry, this blog arrives at this issue from the viewpoint of a consumer. In other words, the blog looks at the various classes of consumers and their different markets in order to suggest that imitation is not really harming anyone to an extent where copyright laws need to be enacted. By looking at the fashion copyright debate from a consumer and market viewpoint, this blog provides incredible support for my thesis by showing that a lack of copyright laws in fashion actually helps the industry thrive in all consumer markets. With design protection, the market for low end customers may very well be knocked out since a majority of consumers do not shop around in both low and high end markets.

I am interested in this topic because fashion does not currently have any copyright protection for designs. Thus, my question for my project is why the fashion industry is lacking protection, and my thesis is that the reason for such a lack of protection is that both the consumers and designers benefit from there being no protection for fashion designs.

 

This article introduces another argument to support the one that states that pirates can actually be beneficial to the original producers of fashion products. The authors render that pirates are not merely copiers. On the contrary, they often inspire high-end fashion designers in new directions. Specifically, the article cites the example of Fred Nuovo, the designer of the Nokia luxury brand, recognizing his idea of creating Vertu came from pirates who were selling counterfeit Nokia phones with diamonds on them. In addition, the article describes an incident in which Coco Chanel, a high-end fashion designer, used raffia in her collection after her press secretary bought a counterfeit Coco Chanel knockoff outfit that had included raffia trim, a detail the original lacked. If this were to be true, the usually pirated firms are the ones who are pirating from the so-called "pirates." In the conclusion, the article admits that the overall impact on social welfare remains ambiguous and calls for further research into this topic as a whole.

This article adds another argument that is important for my topic: that often producers not only gain financial benefits from pirates, but that they also often take creative ideas and details from counterfeited products. In addition, I appreciate the way that the author notes that the beneficial gains from pirating are still, at this point, ambiguous and that further research is needed to be conducted in order to fully understand the implications piracy has on fashion designers and their revenue of sales.

 

 

This article recognizes that fashion design does not currently receive protection under U.S. Copyright law. H.R. 2033, the "Design Piracy Prohibition Act" would amend Chapter 13 of the U.S. Copyright Act, which now protects the designs of vessel hulls. This article analyzes the amendments that H.R. 2033 would make to Chapter 13 of the Copyright Act, including granting fashion designs a three-year term of protection, based on registration with the U.S. Copyright Office. Lastly, it summarizes arguments both in favor of and against giving protection to fashion designs. In the article, the author points to the fact that those against protection of fashion designs fail to recognize fashion as an artistic form of creativity. They simply view fashion and clothing as utilitarian. In addition, those in favor of protection highlight how easily runway photographs can be accessed from the Internet, making it easy to be copied. They also say that young designers specifically have difficulty in establishing themselves because of how easily designs are copied, and they point to the protection granted to fashion designs in other areas of the world.

            This article is important for my topic because it complicates my argument that pirates actually benefit the original designers. In this article the arguments made against my thesis are clearly stipulated, which I will include in my paper in order to acknowledge the opposing argument. This article is also important because of the way that it analyzes the impending "Design Piracy Prohibition Act" and its implications for future fashion designs.

 

 

This article's overall argument is that although counterfeiting is a criminal activity, the act of counterfeiting is not always damaging to brands and can actually work to a brand's advantage. The author lists numerous ways in which this is accomplished, such as that it can increase a brand's awareness and desirability in the public's eye. A new way of looking at how counterfeited products help the original is by analyzing who is purchasing the counterfeits. The article argues that the people who buy the fake products are not financially able to buy the original, and that if they were, they would be the first in line to purchase the original. In this way, the increased brand exposure only helps to entice those who are able to buy the original. The counterfeit proves as no competition for the original. Another new piece of argumentation is that it closes off competition. The author notes that high priced branded goods encourage competition at slightly lower prices. Then, the "fake" products are priced as significantly lower prices. Thus, the competition is squeezed out because it is prices out of the top market by the original brand and is unable to compete with the very low prices of counterfeited products.

            I chose this article to use for my final project because it clearly explains that way in which counterfeited products eliminate the real competition for the original higher priced products. This adds a new dimension to my argument because previous articles did not deal with the actual competition of the original producers of fashion goods in the way that this author does.

 

 

This article argues against the thinking enforced by the incentive thesis, which argues for strict enforcement of intellectual property rights against piracy, or imitation. According to this theory, if the original producers are not protected, they will lose the incentive to produce new items. The article states that counterfeiting in fact does not always diminish the original producers' innovation incentives. The author gives two reasons to back up his argument. First, the introduction of copies will increase the amount of money that the elite are willing to pay for the original fashion product. In addition, the fact that a product is being copied will increase the desirability of the product to the non-elite consumers. Because of this increase in perceived desirability, such consumers will believe that the status benefits acquired from owning the product make the product worthy of a purchase. Thus, not only will the elite increase their purchasing of the item, but the non-elite consumers will also more often buy the fashion good. Both increase the producer's revenues on sales of the original, despite the counterfeiting.

This article is important for my topic because it argues against the need for protection against counterfeit products. Here, the consumer is not only the one being aided by the pirates, but the producer, too, is gaining more benefits, in the form of an increase in the revenue of sales on a fashion good, with the appearance of counterfeited products. I think it is important to note that the author specifies the counterfeiting is "imperfect," which increases the desirability of the product, both for the elite and non-elite consumers.

 

 

This article questions why the fashion industry has failed to secure U.S. copyright protection for its designs, despite the rampant view that piracy is an extremely fatal and potentially destructive threat to the drive to engage in creative pursuits. It tracks the film, music, software, and publishing industries, illustrating that such industries have used this argument for demanding increased legal protection. On the other hand, fashion firms and designers have not. The author gives several reasons for his argument. First, the article states that even original producers are sometimes copiers themselves. Different designers at different times set the trends for a season, and all engage in copying at some point. Also, because of the fashion industry's quick design cycle, a firm's position as either copier or originator is constantly and very swiftly changing. Furthermore, the article notes that the fashion industry is dependent on whether or not the consumer is aware of the newest trends. Thus, widespread copying results in some coherence. There is always a range of new designs produced each season, and the counterfeited products make clear to the consumers was is "trendy" at the time.

            This article is important for my overall topic because it gives claim to the argument that lack of protection rights for top designers are actually increasing the sales for these designers' products. Without counterfeiting, the American public will not be aware of what is "trendy," which would result in greater distribution of sales, but less concentrated sales for a particular design. Also, it gives substance to the argument that all designers borrow from one another at some point, for the industry is constantly evolving.

 

 

This article explores the relationship between creativity and the community at large. The authors use as their example of a creative industry the fashion industry, and shows the ways that creativity should not be considered only as a matter of individual creativity. Instead, it should involve a "conversation" between individuals and larger communities of people and traditions. In this way, fashion takes many of its stylistic elements from the past. The article gives examples of taking elements from the Polynesian islands, urban street corners, stock-car races, and bowling alleys, and then transforming them into new trends. The evolution of fashion is described, beginning with haute couture in Paris, Milan, and New York that was the fountainhead of new styles, to the introduction of women in the work world, which resulted in a waning of the cultural appeal of high fashion. Then, celebrities and movie stars took the place of elite fashion shows, making fashion a more year-round passion than before. Lastly, the article recognizes the problem of "originality," and denotes the lineage of high fashion. It states that fashion shows the ways in which creativity involves building upon the past and sharing inspiration. Because of this, creativity requires freedom, in the authors opinion. The most innovative work comes from the artful recombination of existing work.

            This article is important for my topic because it examines the issue at large from a less monetary way of looking at things. The article does not discuss whether or not the designers will be hurt financially, but argues that in order for the creativity of designers to flourish, they must have the freedom to borrow inspiration from the community, others, and the past.

 

 

This Congressional testimony came from Narciso Rodriguez, who speaks on behalf of the Council of Fashion Designers of America, a not-for-profit trade association of America's fashion and accessory designers. First, he speaks about how frequently fashion designs are being copied. Then, he relates his journey from being the only son of Cuban immigrants, growing up in Newark, NJ, and finally becoming a fashion designer. This journey, he tells, took training, hard work, and financial capital. Then, he attempts to argue that fashion designs are not utilitarian in nature, but that they are works of art, citing specific designers and giving examples of their work. He then covers certain specifics of the HR 2033. For example, no previous designs would be protected by the bill; thus, past designs can be used for inspiration. Also, he states that the market will not be drained of reasonably priced items. Furthermore, the consumers of pirated products are not to be punished. As a whole, the speaker urges that the protection bill for fashion designs be passed.

            This is important for my topic because it complicates my thesis. If, as many of my sources argue, pirates really do benefit the producer of the original, I wonder why so many producers are asking for protection of their products. This testimony gives voice to one of these producers, a man who is responsible for original fashion designs and feels as though pirates and copiers are hurting him financially.

 

 

This article is the testimony of Steve Maimon, co-owner of Stony Apparel. In the testimony, Maimon speaks out against the Design Piracy Prohibition Act. According to Maimon, the fashion industry has developed into a successful industry without the help of any copyright laws; thus, in his opinion, there is no need to enact protection now. He states that the laws will reduce creativity and hurt the consumers. In addition, firms like his own will be hurt since retailers will return any products claimed to be infringing, even if they are falsely claimed. Even as the fashion industry is one that daily deals with risks, with the enactment of this protection bill, even more risks will be present for manufactures and retailers, in the form of numerous new lawsuits. Furthermore, Maimon foresees an increase in prices of products since designers will need to hire lawyers to help fight against lawsuits. In Maimon's view, only lawyers will benefit from the protection of fashion designs.

            I think this article is important because it shows an opposing testimony to the one I have already cited. Whereas Rodriguez was arguing for the protection acts, Maimon is clearly fighting to eliminate the possibility of the protection for designs. As a primary source, the concerns and fears are legitimate. I also think that because he does not only cite the negative consequences that the bill would have for retailers as himself, his argument is more effective. Instead, he notes that the bill would be detrimental for consumers, designers, and retailers. In addition, he is speaking from experience, as one who directly would be affected by the passing of the bill, which make his claims more passionate and heart-felt.

 

 

This article provides for the reader the pros and cons of the fashion copyright argument, eventually arguing against the endorsement of such laws. The author initially admits that piracy causes $12 billion of loss in the fashion industry annually, and even in Japan and in the European Union fashion designs fall within the scope of current intellectual property protections. However, despite the wishes and demands of the Council of Fashion Designers of America, the author warns that enactment of fashion copyright laws should be approached with caution. Furthermore, she goes on to say that "meaningful protection" is impossible to maintain. Because of the difficulty that exists in defining the terms of fashion, fashion design will be difficult to protect. In addition, such an enactment will cause conflicts and more controversy in Congress. Not only will there be a plethora of fashion copyright cases, but other industries, which are not currently protected, will likely bombard Congress asking for similar protection. According to this article, any benefits that could result from design protection would, in the end, be eliminated due to the time and costliness of court decision on piracy.

            This source proved beneficial for my purposes because of the different angle Hendrick went at looking at the problems with piracy and fashion design. Unlike my other sources, she used a very legalistic method of finding evidence against the benefits of enacting the fashion copyright laws. By analyzing these laws, she contends that they are extremely ineffective at solving the issues surrounding the copyright and fashion industry. Another negative aspect is illuminated for me: the time and costliness of court decisions that would inevitably result.

 

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.

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.

 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.

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.