Copyrights in the Fashion Industry, Hot or Not?
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"!
Where would you start with the designs. Who would get to copy right the basics... the dress? the skirt? the mini? the maxi? It would be tough to find a place to start with copy righting and a place stop. Would a ruffle on the right side of a dress be different from a ruffle on the left side? What about a ruffle anywhere? Could I copy right that? Would the color matter or just the lines. Would the pictures of Cleopatra's dress be up for grabs? Could you copy it? Who would own the rights? More trouble than its worth. The thoughts of an old woman.
Beverly
Beverly,
You bring up some very valuable and pertinent points. First, I don't normally do this, but I'd like to make a correction to your post. It's not too common in the blog writing world to this and it's somewhat rude, but I think you misspoke in saying "The thoughts of an old woman" ... when what you meant to say was "The thoughts of a WISE woman." Just thought it warranted a correction.
Copyrights in this field would be completely new and thus foreign to the designers already in the markets, so you're right, where would we start? Where is the line? I could only imagine it would have a major impact on the market. Keeping new designers from using their creativity, and always having to worry about infringement. Not only would this be stifling to designers, don't forget they would have to check with attorney more often than not to make sure they weren't infringing on existing designs.
In reading the proposed bill, I can only speculate to the outcome of how this would occur (but that's just going to have to do for the moment), but I believe the copyright protection would be afforded to the uniqueness of the article as a whole. The bill has language in it that states that any unique design can be copyrighted if the addition is an alteration (for lack of a better term) that was "non-utilitarian" and "non-trivial." It's unclear what this actually means, but it would seem that the change would have to be something above just changing the color or adding a hem to a dress. They would look at the whole of the article, which means the courts would ideally take into account the designs, the organization and arrangement of items and the overall appearance of the article of clothing. Let's take skinny jeans as an example. If I had come up with skinny jeans I would try and get a copyright on it. It's a unique change that could likely be seen as non-trivial (it changed the appearance in a significant way) and would likely be seen as non-utilitarian (there was no functional or basic design being copied, per se). In submitting a copyright, I would give a range in the diameter of the legs of the jeans and if approved I could then go after anyone who copied that style. So you'd only have one place to buy skinny jeans. They could charge a fortune for them and if half the amount of folks that buy them now bought them, they could charge outrageous prices.
As for the picture of Cleopatra's dress, if you owned a copyright on the picture itself you could put that on clothing and then sue someone for wearing it. However, if you were the first one to reproduced Cleopatra's dress it's so unique that the same thing could apply as with the skinny jeans. Currently, since it's already out in the market, it would be tough to obtain. However, somehow mix the Cleopatra Dress with a mini skirt and then you might have something. Any unique shoe design, any unique belt, any new collar you put on a jacket ... all could be copyrighted. As a result, no one could reproduce and no copycats could enter the market.
I think if it's their own idea, why not give them credit and a copyright. Sure you could alter a few things, but if you have the "original" idea, why not get a copyright and make a few bucks.
Ok, lets take skinny jeans. Do you go back to the original jeans made by Levi Strauss? His design....and I think the legs may have been straight not skinny. But would two inches narrower infringe on Levi's original design. Where does it start and where does it stop. I still say there are no new designs.