I love to see niche blogs about interesting topics. The other day I stumbled across the Fashion Law Blog. Great use of a blog to expand one’s practice area and establish a niche. I’d love to see the authors - Klein & Wilson - dissect actual cases of design poaching and solutions - like how designer Nicole Dreyfuss (daughter of IP prof Rochelle Dreyfuss) succeeded in persuading Abercrombie to compensate her for copying Dreyfuss’ purse design. There’s lots of room there for solid, practical content as well as historical & international examples. I look forward to seeing the authors discuss some interesting topics.
Most fashion - at least in the United States - is not susceptible to copyright, or other intellectual property, protection. Non-functional details, like the Adidas 3-stripe adornments, may be protectible as trade dress.* Trademark law protects logos and trademarks affixed to garments and other wearable accessories (although it must be noted that trademark counterfeiting is a huge business - large fashion houses that produce luxury products have only been moderately successful in policing their marks from use in the counterfeit & knockoff business).
Under copyright law, only elements that can be identified as existing separately from the utilitarian aspects of the article may be copyrighted. The design of a garment typically cannot be separated from the utility of a wearable article of clothing. Therefore, most clothing cannot be copyrighted because the design is essential to the garment’s utility (some elements of clothing like the Bjork swan dress may be a different story, but the Copyright Office typically does not allow registrations for even costumes as a whole). Original patterns and prints can be copyrighted because those elements can exist separately from the garment itself. Clothing for bears, however, may be an entirely different animal (because clothing for a stuffed doll is not really useful, the Copyright Office might be more lenient in registrations).
Although it looks a little unfair to disallow protection for the output of an entire industry based on creativity and design, there is not a great mass of evidence that the lack of copyright protection for fashion has impeded the industry in some wayThere is not a great mass of evidence that the lack of copyright protection for fashion has impeded the industry in some way. Alternative mechanisms, such as the traditional two/four season product line launches, induce creativity and innovation in clothing design. Designers can’t compete if they don’t churn out new lines on a very specific schedule.
However, now that the internet is enabling very small, unknown designers to compete with large retailers and fashion houses, it may discourage designers like Dreyfuss to continue creating new looks, if their products will only be copied and mass-produced by larger retailers. However, the internet is also creating a fashion-rush, where micro-trends last for a month or less, and are out of style before they’re in. I don’t think even ABS, a clothing manufacturer that replicates popular celebrity garb, can knock off dresses that quickly.
Perhaps this situation is more “unfair” when comparing the unavailability of IP protection for the garment industry to the availability protections for architectural designs. Both garment and building design contain, more or less, a good amount of design and aesthetic elements. However, while garment designs are virtually unprotected by copyright, architectural and building designs - including technical diagrams and drawings - have been protected by the Copyright Act for the last 15 years. Perhaps this disparate treatment is more cultural than economic.
While most nations have some sort of iconic, symbolic dress, the best we Americans can do is our Levi’sThe best we Americans can do is our Levi’s (and it’s more than funny that our national dress is so strongly identified with one brand). The history of buildings and architecture in the United States is much richer than that of fashion. The skyscraper is an epic monument to man’s triumph over the elements. Moreover, while attractive clothing has, until recently, been something unattainable by the masses, you can’t help but feel some sort of ownership (not in a real property sense) over a building. If you see it every day, it becomes part of your world.
Actually, the protection of architectural works stems from the United States’ accession to the Berne Convention, but there is little difference in the way clothing & buildings have design elements that are twined tightly with the utilitarian nature of the works. Reticence to add similar protection for garment design probably stems simply from the fact that most clothing is intended to be somewhat mass-produced (traditional arguments that it prevents monopoly in the clothing industry no longer have any credence), while most architects intend their works to be one-off creations. Except, of course, for tract housing developers, who also use the new laws much to their own advantage.
Copyright protection for clothing is seemingly a little different in India, where it appears that garment designs are protectible if “patented.” It’s unclear whether it’s the garment design as a whole, or the distinctive fabric pattern, but it seems akin to the protection afforded by a design patent here in the U.S, and would include pattern as well as garment design and construction. The story here is that one enterprising company is ripping off outfits from hit Bollywood films so that consumers can purchase their favorite character’s clothing. Whether or not protection is available for the designs, the film companies could very well produce and license the clothing and market it as authentic, with the actor’s seal of approval, etc.
As this post is far too lengthy for this blog, I’ll end here, satisfied that I actually created a blog post with bjork & bollywood as key features. Plus, I had a lot of fun with the new blog posting tool.
I actually created a blog post with bjork & bollywood as key features* i.e., distinctive design of a product that distinguishes it as being so closely associated with one source so that if another company utilizes the design, the average consumer would be confused as to its origin. Note that the word “dress” really doesn’t have anything to do with clothing! Adidas in particular is very active in protecting the 3-stripe design from companies using 2 & 4 stripe designs.
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