Raustiala, Kal and Sprigman, Chris "The Piracy Paradox: Innovation and Intellectual Property in Fashion Design." Virginia Law Review, Vol. 92, p. 1687, 2006; UCLA School of Law Research Paper No. 06-04. http://ssrn.com/abstract=878401

This detailed article is an in depth view of both sides of the fashion copyright debate. Rather than simply looking at and supporting only one viewpoint on this controversial issue, the authors address both angles to the fashion copyright controversy. They then proceed to prove why support of low IP protection is the better choice despite arguments made in support of fashion copyright laws. This article describes the fashion industry as unique since it continually produces original content while its main creative element remains outside of copyright protection. This appears to condradict the theory of IP rights which claims that copying, which is rampant in the fashion industry, smothers the incentive for innovation. The article then presents the reader with the two overarching arguments. The argument for increased copyright protection within the fashion industry is more of a moral rights claim. This side claims the lack of current fashion design protection is an injustice to the immense creativity put into the creation of apparel. The other side looks at the unique nature of the fashion industry. They claim copying drives the cycle that makes fashion such a thriving, innovative industry. The article then proceeds to delve into past attempts at copyright protection for fashion. One failed attempt was made by the Fashion Originators' Guild of America: they made a deal between designers and retailers to refuse the sale of any copied apparel and boycotted any member of the guild who violated this rule. Since clothing and apparel are considered utilitarian objects, copyright should not apply to fashion design. Patents and trade dress also are not effective methods of protecting copyright. Although trademark is used by designers, it can only be used to protect names and logos, not entire designs. Therefore, bills like HR 5055 are suggested by groups like the CFDA. One of the main concepts of this paper is how induced obsolescene and the positional nature of apparel drive the fashion cycle, which would be incredibly slow and ineffective without copying. In addition, Raustiala and Sprigman explain how free appropriation helps to anchor trends in the industry. So, they conclude that due to induced obsolescene and anchoring of trends, the fashion industry has remained stable despite rampant copying. Finally, the authors address the copyright system in the European Union and how even with protection laws, very few design infringment cases come to court. Additionally, due to the litigious culture of the United States, copyright protection in the US would simply flood the courts with unnecessary cases and reduce innovation due to fear of suit.

This article is of extreme importance to any research regarding the issue of fashion copyright. The article is unique among other scholarly works on this issue in that rather than just delving into one side of the debate, the authors address the arguments on both sides of this fashion copyright war. This is an extremely useful method and structure since it provides the reader with insight into both arguments. However, the article is then strengthened by analyses of both arguments and subsequent counterarguments against those supporting fashion copyright. Since my topic revolves around whether fashion copyright should be enacted or not, having both argments laid out within one coherent paper is extremely beneficial. The paper also looks at previous attempts at fashion copyright. This is important in building the history and basis of design protection in my paper and why these laws should not be enacted in the present day. This article is very important in building the foundation of my argument.

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.

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.