Flattery or Fraud: Should Fashion Designs Be Granted Copyright Protection?
Online Edition -
Online Ed. Vol. 8
Written by Jennifer E. Smith Wednesday, 21 February 2007
Jennifer E. Smith 1
Cite as 8 NC JOLT Online Ed. 1 (2007) |
Download PDF
I. Introduction
While copying books or music can result in a hefty fine,2 copying a fashion design is legal. Copying in the fashion industry is commonplace. However, fashion copycats could find themselves in trouble if Congress passes the bill sponsored by Representative Bob Goodlatte. H.R. 5055, which was introduced on March 30, 2006, would amend the Copyright Act to provide fashion designs a three-year period of copyright protection.3
Although Rep. Goodlatte is motivated by noble intentions, H.R. 5055 is not an adequate solution. Not only would H.R. 5055 fail to alleviate the problems that prompted it, the bill would also have several negative consequences. The legislation is flawed on three levels. First, it is an improper extension of copyright protection that contravenes the basic principles of copyright. Second, the European model of copyright protection for fashion designs, with which H.R. 5055 seeks alignment, would not translate well into the American context and would increase litigation. Third, H.R. 5055 would have a negative impact on the majority of people it affects.
II. Copyright Law and H.R. 5055: A Mismatch
H.R. 5055 contravenes the basic principles of copyright law in several ways. First, providing copyright protection for fashion designs undermines a fundamental principal of copyright, namely that fundamental concepts cannot be copyrighted. The Copyright Act does not protect any “idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”4
Copyright protection is particularly counterproductive in the context of fashion design because it would result in the monopolization of an idea.5 For example, if the designer who created the wrap dress was granted copyright protection, no other designer could create a wrap-inspired dress because copyright protects not only against exact replication, but also derivative works.6 As a result, a designer would be guilty of infringement if the court determines that one garment was similar to another copyrighted article.7 IIIn fashion, imitation and derivation are the foundation of the creative process.
The second major reason to refuse copyright protection for fashion designs is that clothes are useful articles. While some designs are highly ornamental, garments serve the utilitarian purpose of covering our bodies. Protection for useful articles is generally associated with patents, not copyrights. The Copyright Act provides that “[a] 'useful article' is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a 'useful article.'”8 However, under the “separability doctrine,” some aspects of useful articles may be copyrighted.9</span> To achieve copyrightable status,
the design of a useful article . . . shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from and are capable of existing independently of, the utilitarian aspects of the article.10
Under this approach, copyrights have been granted to lamps with Balinese dancer statuette bases,11 distinctive belt buckles,12 and Halloween “nose masks” in the shape of animal noses.13 Therefore while aspects of a fashion design may be copyrighted, the piece as a whole cannot because of its utility.
III. European and American Copyright System: One Size Does Not Fit All
H.R. 5055's supporters stress the importance of harmonizing U.S. copyright protection with that of foreign countries, specifically the European Union. However, according to University of Virginia law professor Chris Sprigman, the European Union regulation granting copyright protection is largely unused.14 According to Sprigman, between January 1, 2004, and November 1, 2005, 1,631 garments were registered in the European Union, the majority of which were for “plain T-shirts, jerseys, [and] sweatshirts with either fixed trademarks or pictorial works.”15 In the United States, these designs would be protected under trademark law, but would receive the added protection of copyright under H.R. 5055.16
While the European Union has only recently given copyright protection to fashion designs, it is not a novel concept. On the contrary, France has afforded copyright protection to clothing as applied art since 1793.17 The crucial difference, however, is that French law does not require the element of originality for fashion designs.18 In the United States, originality is the “touchstone” requirement of copyrightability.19 The difficulty in distinguishing between a design that copies an original, versus one that was inspired by the same idea, is particularly relevant because the proposed legislation requires that “a court and not the Copyright Office settle disputes over registration of designs . . . .”20 In an industry in which new designs are often said to be “inspired by” looks from other periods, determining originality for purposes of copyright protection is likely to be a source of consternation for the courts. The litigious nature of American society, as compared to that of Europe, could cause costly and time-consuming legal battles.21
IV. Fashion Victims: the Effect of H.R. 5055
If enacted, H.R. 5055 would most significantly impact four major groups: (1) high-end designers; (2) copycat designers; (3) new and emerging designers; and (4) the public.
High-end designers like Chanel, Louis Vuitton, Gucci and Prada have the most to gain from the proposed legislation. Most trends begin on the runway and work their way down to the masses.22 Some designers feel perturbed to see less expensive knockoffs available in department stores shortly after a runway show because they fear their profits will be reduced.23 Surprisingly, there is no consensus among high-end designers in favor of copyright protection. Whereas designer Tracy Reese's first thought was, “[c]an I sue them for this?”24 when she saw a knockoff of one of her dresses, evening-wear designer Carmen Marc Valvo “shrugs it off” when he comes across imitations of his work, noting: “[f]ashion is more evolutionary than revolutionary-you're always inspired by something else.”25
With such divergent opinions, it is not surprising that J. Craig Sherman, Vice President for government affairs of the National Retail Federation commented: “We're staying neutral on the matter. We tend to take a position when there is a consensus in our industry on an issue. There is not a consensus on this issue.”26
Copycat designers have much to lose if H.R. 5055 were enacted. The ripple effect of the legislation would extend far beyond the knockoffs being peddled out of the backs of vans, striking at the heart of American commerce: The Mall. American labels like ABS and Banana Republic are just a couple of the likely targets of litigation because designers for these companies have been known to borrow liberally from high-end designs.27 For years these companies have successfully marketed runway-inspired clothing lines to the public.28 H.R. 5055 could effectively shut down how these companies operate.
Moreover, because H.R. 5055 sets statutory fines for infringement at $250,000.00 or $5.00 per copy,29 American copycat designers may take their businesses to less restrictive countries, rather than deal with crippling fines. Others, however, may take the risk of continuing to copy, following the lead of European copycat designers, like H&M, Top Shop, and Zara who continue to sell less expensive imitations of runway designs, despite a European Union regulation granting fashion copyright protection.30
The effect of the proposed legislation on new designers may at first look like a boon. In the best case scenario, if a new designer created an “original” design, her work would be protected from being pilfered by a bigger, more renowned design firm. However, it is more likely that copyrighting the design would prevent widespread dissemination, without which a trend cannot occur.31 Extending copyright protection would chill original expression because new designers may channel their talents into other pursuits, rather than face statutory fines.
Finally, the public will also be negatively impacted by H.R. 5055. Middle-class customers, who constitute the consumer base for the copycat designs, would have their options significantly limited.32 Consequently, there would be an increase in counterfeiting and knockoffs available on the black market if the demand for luxury look-alikes remains but supplies shrink. Consumers who cannot afford original designs will be penalized along with the copycat designers. As the public domain shrinks, so, too, does the exchange of ideas and “free flow of information.”33 H.R. 5055 would slow the speed with which “low-end retail outlets” pick up the designs of “high-end designer stores.”34 A three-year waiting period for certain designs would be a vivid illustration of the “haves” and “have-nots” that should not be encouraged. For example, imagine the consequences if a certain suit design was granted copyright protection. A person who could afford the designer suit-along with the connotations of wealth, power, and connection that go with it-would have a decided advantage over someone wearing the three year old suit design. While the fashion elite may gnash their teeth to see average Americans sporting runway styles, the accessibility of fashion to the middle class promotes equality and discourages classism.
V. Conclusion
Fashion designers have enjoyed unfettered access to their fellow designers' works for over two hundred years in America. As a result, the fashion industry is thriving. Therefore, fashion designs should remain in the public domain. Although proponents argue that H.R. 5055 would protect creative designers from unscrupulous copycats, the majority of those who would be affected by H.R. 5055 will be better served by unfettered access to new designs. By leaving fashion designs in the public domain, we will prevent complicated and protracted litigation in which the placement of a button or the hem of a dress could be determinative. We will also ensure the existence of a rich public domain of ideas and access to new designs for upper class and middle class consumers alike. In the case of fashion, imitation may not always be flattering, but it is nonetheless indispensable.
Last Updated ( Thursday, 27 December 2007 )
