As of late, the issue of Copyright in the fashion industry has been increasingly in the news. With the recent proposal of "new" copyright laws by New York Senator Charles Schumer, the decision of whether or not to provide broad copyright protection to fashion designers is being revisited. The issue was most famously approached, when in the 1930's the "Fashion Originators' Guild" started a cartel requiring all retailers to purchase from the Guild. If retailer sold a knock-off they would receive a "Red Card" restricting other Guild members from selling to that retailer. The Guild was broken up by the federal government, but that didn't keep certain members from attempting to change federal copyright law to put their oligopoly back in place. They failed.
Many attempts were made afterwards, and in 1998 a significant change was made - the Vessel Hull Design Protection Act was enacted. The what? Just bear with me. This act was passed by Congress to protect the designers of the hulls of boats. Hulls are expensive to make, involve safety issues, and were found to be worthy of copyright protection. However, when drafted the Act's language appears to be an attempt to protect "original designs of a useful article" but the definition of "useful article" was limited to the hulls of boats. The proposed bill by New York Sen. Schumer (NY seems to make more sense when you think of where all the designers reside), just includes "Fashion Design" as a definition to "useful article," incorporating a broader range of protection to designers.
Intellectual property rights (copyrights, trademarks, and design patents) are, and have been afforded to the designers of fashion. However, designers are pushing for more protection over the goods they produce. Currently, a copyright protection applies "only if, and only to the extent that, such design incorporates pictoral, graphic, or sculptural features that can be identities separately from, and are capable of existing independently of, the utilitarian aspects of the article." 17 U.S.C Section 101 (under "Pictoral, Graphic or Sculptural Work"). A good example of this would be a famous painting printed on a shirt. The painting will be protected on it's own, whether or not the painting is used on its own, a shirt, a jacket, or as wallpaper. This restricts most general designs from receiving copyright protection. Trademarks provide a protection to the goods in such a way that will tell the customer from whom they originated. This either comes in the way of a brand name tag or logo attached to the article of clothing, or by a design that is so unique that the consumer knows it was developed by a certain creator (think Adidas and the three stripes along the sleeves of their apparel). Design Patents are used in certain areas of creation, but cause great difficulty for a designer. The technical requirements needed to obtain a design patent, which include non-obviousness and novelty, are difficult to meet, not to mention the cost and the time. If the user can afford the patent, the time spent often in the process ends up being several months to years causing the designer to miss out on the trend.
You can't blame the designers for pushing for stronger protection, they are self-interested people who want to protect their creations (just like most of us). However, if enacted, think of some of the potential effects on the industry:
- Copyright litigation would likely go through the roof (passing the cost on to the consumer),
- Designers would have less incentive to design clothes at the current light-speed rate in an attempt to influence fashion trends , and
- Less expensive in-style clothing would be difficult to acquire (say good bye to clothing stores like Forever 21).
All in the name of protection of large design companies. As an attorney dealing in intellectual property law, I find myself struggling to make sense of the of this proposed law. I understand the need for copyright on lyrics, movies, unique inventions and even drugs, but with clothing there are only so many combinations one can come up with. Shirts are going to have two sleeves, pants are going to have two leg holes, and there is not much we can to change the overall appearance of a tee-shirt. Many in the fashion design market have discussed how the industry thrives because of the lack of copyright regulation, and as one who purchases discount everything, I hope those designers are in the majority. Copyright law has a place in design protection, but if it infiltrates the fashion industry, we might be happy to be "soo 2009"!