Is Copyright Protection the New Black?
The fashion industry is heralded for employing creative means to sell an aesthetic to consumers. When one flips through the glossy pages of the latest issue of Vogue, designs showcased from various fashion houses are meant to evoke a wide range of thoughts and emotions, the most predominant being “I have to have that now.” Yet beyond the oversized Chanel sunglasses and Burberry trench coat lies a multibillion dollar industry, which comprises “the second-largest money-making business” in New York City.[1] The colossal nature of this enterprise is undisputed. So how can it be that designs generated from this wildly profitable industry are left without copyright protection in the United States?
Since 2006, Congress has introduced several bills seeking to extend copyright protection to fashion designs.[2] Current copyright law provides protection for “the designer or other owner of an original design of a useful article which makes the article attractive or distinctive in appearance to the purchasing or using public…”[3] However, fashion designs remain without copyright protection pursuant to Title 17 of the United States Code, and legal precedent has long established that fashion designs are not copyrightable.[4]
In 2006, Congress proposed an amendment to Title 17 that has since failed. Nevertheless, the push for legislation remains. The Innovative Design Protection Act of 2012 (the “Act”) is the most recent bill introduced by Congress on the matter.[5] The Act offers complete legal protection of fashion designs when current intellectual property laws fail to guard against piracy. Somewhat of a copyright-patent hybrid, the bill immediately provides fashion designers with three years of copyright protection upon registration of an original design with the Copyright Office, or when the design is made public.[6] Yet like the proposed amendment to Title 17, this bill was also unsuccessful. Should legal experts and fashion aficionados continue to fight the good fight in securing copyright protection?
Fashion designer Jeffrey Banks addressed the benefits of copyright protection with respect to fashion designs during a hearing on The Design Piracy Prohibition Act in 2006.[7] Speaking on behalf of the Council of Fashion Designers of America, Banks noted that “in the blink of an eye, perfect 360 degree images of the latest runway fashions can be sent around the world. And of course, they can be copied.”[8] Due to advanced technology, the swiftness with which a design can be copied and sold to retailers before designers have a chance to transition from haute couture to ready to wear adversely impacts American designers and consumers alike. Banks noted the clear injustice that occurs when pirates copy an original design: “Piracy is taking somebody’s design, replicating it quickly, doing it so that nobody would know the difference between yours and theirs unless you are an expert at it, and sending it out as your own. That’s clearly wrong and American law must address it.”[9] Copyright protection would therefore deter fashion pirates from copying designs, thus affording designers the ability to get their designs to retailers before copycats emerge.[10]
Budding designers particularly suffer from design piracy, as they do not yet have the reputation or resources to withstand the assault endured when pirates copy their original work.[11] Susan Scafidi, founder and president of the Fashion Law Institute at Fordham Law School and pioneer of Fashion Law studies, noted that small businesses simply cannot compete in the industry when pirates steal their capital.[12] Given that fashion is recognized as a form of creative expression and does much more than serve the functional purpose of “covering the body,” it is asserted that copyright protection ought to extend to this art form, especially when other nations across the world have adopted standards for design protection.[13]
Lack of copyright protection means lack of innovation, as identical products will inevitably float throughout the market, for which there is no legal remedy. Absent creativity and innovation, Banks posited that American businesses will cease to grow and American jobs will be lost: “We can’t compete against piracy so the creativity and innovation that has put American fashion in a leadership position will dry up. Innovation is an investment but we can’t innovate without protection against copying.”[14]
Those opposed to extending copyright protection to fashion designs assert that such legislation would stall the industry as more litigation, injunctions, and licensing would arise, all of which would long survive the “attention span of the fashion market.”[15] Critics also argue that determining the originality of a design is particularly difficult, given that the fashion industry constantly recycles various trends and ideas (take the little black dress, for example).[16] As such, it is further asserted that copyright protection would limit the designs available to consumers and increase costs for the industry and retailers.[17]
While it is impossible to know for certain how a bill of this nature will change the landscape of the fashion industry, this proposal begs the question: is copyright protection the new black?
Footnotes
