Are Copyrights in Fashion?

Are Copyrights in Fashion?

by Michelle Kaminsky, Esq., September 2011

Lawsuits over fashion designs have been commonplace in our legal system for years—just ask Forever 21—but is Congress finally ready to quit hemming and hawing and give designers copyright protection once and for all?

House Bill 2511 was introduced on July 13, 2011 as the “Innovative Design Protection and Piracy Prevention Act” (IDPPPA). If passed, the IDPPPA would give three years of copyright protection to fashion designs not in the public domain that are manifested in clothing, shoes, purses, belts, and other accessories.

While this is an encouraging step forward for those who have been needling for stronger intellectual property protection of fashion design, this isn't the first time this legislation has been around the Congressional block. It's been hovering around the legislative body's hallowed halls since 2006—and there's no telling as to when it might go up for a full vote, let alone pass the House and move on to the Senate.

Fashion Design as Intellectual Property, Historically

Fashion designs have historically fallen into a kind of limbo between copyright, design patent, and trademark. US law has held firm to the position that clothing is a utilitarian item, not an artistic expression or scientific invention capable of being copyrighted.

The main issue is whether the utilitarian aspects of fashion designs could be separated from the creative aspects of the work in the so-called “physical separability test.” The “conceptual separability test” has also presented a hurdle, requiring one to be able to conceive of a design's creative aspects separate from useful ones.

Until now, courts have ruled that clothing function cannot be separated from its creative elements, and therefore not able to have a copyright. But some members of Congress—as well as many designers—wonder whether this is still a valid assessment of clothing in this day and age, especially with the easy accessibility to emerging designs on the Internet.

And so the IDPPPA is taking another turn on the House catwalk.

Is Copyright for Fashion Design Necessary?

The Council of Fashion Designers of America (CFDA), founded in 1962 and headed by Diane von Furstenberg, has been lobbying for stronger protection of fashion designs for years. One reason is to protect up-and-coming designers who have yet to establish the kind of trademark recognition that may better protect them from knock-offs by copycats. Another reason is simply that designers work hard on their creations and no one else should be able to profit from that work without their permission.

And the Internet has only compounded the problem, according to designers. Lazaro Hernandez, designer and cofounder of Proenza Schouler, recently testified in front of the Judiciary Subcommittee on Intellectual Property, Competition and the Internet that easy online access to 3-D images of designs means that his creations are transported to “copyists in China” even before they make it onto runways in America, causing severe economic damage to his business.

On the same side as Hernandez is Harvard Law Professor Jeannie Suk, who testified that copyright protection would encourage fledgling designers to “innovate rather than simply replicate” their more established colleagues' designs, which, Suk argues, is good for both the industry and consumers.

On the flip side, University of Virginia Law Professor Christopher Sprigman testified that it would cause “needless litigation,” and with UCLA Law Professor Kal Raustiala has written that copyright protection would result in designers “fighting over who started a trend.”

Sprigman and Raustiala believe that copying fashion designs actually generates demand for and interest in purchasing new styles, creating greater sales via the “piracy paradox.” They also argue that the current system provides a way of “democratizing fashion” for the masses who can't afford high-end designer clothes and accessories. The pair call the proposed legislation unnecessary, since “for 70 years the American fashion industry has thrived in a world of free and easy copying.”

Not surprisingly, “fast fashion” chains such as Forever 21 side with opponents of the bill, according to Sprigman.

So, with a Congress that has been called “one of the least productive in memory,” will legislators once again skirt the issue or will they finally craft copyright protection for fashion designers? We'll just have to wait and see, but for many designers, copyright protection has been handled in anything but a timely fashion.