Fashion Weak: Copyright’s Lack of Protection for Fashion Designs

With fashion month (unfortunately) over, it seems an appropriate time to discuss how copyright law treats fashion designs – or, should I say, how copyright law doesn’t treat fashion designs.  The protections that are afforded to fashion designs and apparel under other intellectual property regimes, namely trademark and patent, are largely unavailable under current copyright law.  This is due mainly to the somewhat narrow definitions used by the Copyright Act in classifying what may and may not be protected.

Specifically, copyright protection extends to “pictorial, graphical, and sculptural works”.  A fashion design would most likely need to fall into this type of work to be protected, as it does not easily fit into any of the other types of protected works.  However, a “pictorial, graphical, and sculptural work” (PGS work) is currently protected only if, and only to the extent that, it possesses a function beyond being utilitarian in nature.  17 U.S.C. §101. In other words, if the PGS work’s purely functional aspects cannot be separated from its aesthetic features, then it cannot be copyrighted.

Here in the United States, fashion designs are considered functional, due to the fact that the aesthetic features cannot be separated from their purely functional component. As a result, these designs do not qualify as a PGS work, and thus do not receive copyright protection. This also differs from many European countries, which currently allow fashion designs to receive protection (France has even allowed copyright for clothing since the 18^th century!). Seem unfair?

Well, rest assured that there have been pushes to change the Copyright Act.  For example, the Innovative Design Protection Act of 2012 (S.3523) (text and summary available here) sought to change the current lack of protection.  Under the proposed act, the definition of a “useful article” would have been changed to include articles of clothing, thus allowing fashion designs to receive protection.  The Act would also have provided protection for these fashion designs for a three year, non-renewable term.  For better or worse, the proposed bill met its demise on January 3, 2013, with the change in Congress.

But it does beg the question: should copyright protect fashion designs?  This seems like a question with no correct answer, and varies greatly depending on who is asked.  However, this article presents what appears to be the greatest pros and cons of granting copyright protection to fashion designs:

Pros:

• Providing fashion designs with copyright protection would put fashion designers on the same playing field with other artists – such as film-makers, musicians, writers, etc. – who are protected by the Act;
• Providing copyright protection would have the effect of preventing knock-offs and copying, which have resulted in profit losses for fashion designers;
• The copyright scheme is somewhat easier to navigate than requiring fashion designers to go through a patent or trademark application process;
• It would put the U.S. more in line with how European countries approach copyright protection.  With the global economy we now have, this may prove beneficial;
• Protection may further the goal of copyright, which is to promote arts and sciences, through eliminating the threat of having designs immediately copied.  Copyright may provide an incentive for fashion designers to be more creative with their designs.

Cons:

• The fashion industry norm is to have knock-offs and copying; to introduce protection may have unwanted side effects (such as keeping smaller designers out of the business; limiting options to consumers), allow designers to copyright an idea (for example, a wrap dress), and spur fights over who created the design first;
• In the same vein, copying can be said to benefit the fashion world.  In what Kal Raustiala, a Professor at UCLA Law School, and Chris Sprigman, a Professor at UVA Law School, call the “piracy paradox”, the “effect of copying is to generate more demand for new designs, since the old designs – the ones that have been copied – are no longer special.  The overall result is greater sales of apparel”;
• Other avenues of intellectual property protection (such as trademark and trade dress or design patents) could (and possibly should) be where fashion designers look for protection;
• It can be said that providing protection, even for a limited time, would cut against the goal of copyright: furthering innovation.

This is by no means an exhaustive list of all the issues presented by the possibility of granting copyright protection to fashion designs.  It seems like only time (and lobbyists) will tell whether the fashion industry will receive any protection, and exactly what kind of protection it will receive.

In the meantime, be sure to check out these great articles for more information:

• http://www.mttlrblog.org/tag/httpsmallbusiness-jdsupra-compostinnovative-design-protection-act-targets-fashion-knockoffs/
• http://freakonomics.com/2010/03/12/should-fashion-be-protected-by-copyright-laws-a-guest-post/