Fashion design copyright in the United States

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In the 2017 Supreme Court case. Star Athletica, LLC v. Varsity Brands, Inc., it was ruled that Fashion design can be covered by copyright.

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...an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article. [1]

Background

Domestic

The beginnings of copyright law began with editorial copyrights in the 1750s. [2] Since then, we have had extensive advancements within society that have called for legislative additions to the initial idea of what should and should not be copyrighted. In 1932 the Fashion Originators Guild of America unified in order to prevent further knock offs by requiring designers to submit their designs for cataloguing, and by “red carding” those stores and businesses that were found to reproduce previously submitted designs under their own name and for their own profit. By red carding these retailers, they essentially blacklisted stores to institute boycotts and dissolve the offending business. However, in 1941 their actions were ruled illegal through violating antitrust laws and monopolizing the competition and so the guild disbanded. [3] The issue continued to be under debate as designers through the years consistently felt blows in revenue as cheaper versions of their designs flew off the mass marketed racks. Attempts at creating a bill to combat these knock offs rose and fell, until various supporters grabbed hold of ideas to form a tangible and arguable legislation.

International

Fashion design copyright laws in Europe have been known as early as in the 15th century. French king Francis I gave out specific privileges related to the production of textiles. [4] By 1711, in Lyon, illegalities were already being defined in regards to fashion materials, and in 1787, in England and Scotland fashion designers had fruitfully pushed their needs for protection into basic legislation. In 1876 Germany began protecting fashion patterns as well as models, and in 2002 European regulation on designs that were new and provided an aspect of fresh character or aesthetic were brought under protection. [5] From 2004 to 2006 the “total production volume for clothing decreased by about 5% each year… [and by] 2006 the European union trade deficit for clothing was at 33.7 billion.” [6] These statistics show that while there are benefits of their advanced design legislation, the economic and external factors still hindered their industry growth in ways the U.S. can empathize with. As 2007 came to a close, WIPO, or the World Intellectual Property Organization, had registered twenty-nine international designs. [7]

Legislation

In 1998, Representative Howard Coble of North Carolina was the one to use the example of boat hulls in his argument for fashion design protection. A statute had been added to the copyright legislation describing boat hull designs to be included in the protective act, and Coble expressed how the same types of ideas applied to hull designs could be used for fashion designs. [8] In 2006 the 109th congress found themselves facing the first supported bill asking for protection of fashion designs. This attempt, however, was stalled in congress. A second attempt was made in 2010, and now yet another attempt stands before the congress of 2013, hoping to be pushed through this final time. [9] The original proposed legislation regarding fashion design copyrights put before congress in 2006 were as follows. “A fashion design is subject to protection under this chapter… A ‘fashion design’ is the appearance as a whole of an article of apparel, including its ornamentation. The term ‘apparel’ means- an article of men’s, women’s, or children’s clothing, including undergarments, outerwear, gloves, footwear, and headgear; handbags, purses, and tote bags; belts’ and eyeglass frames. In the case of a fashion design, embodied in a useful article that was made public by the designer or owner in the United States or a foreign country more than 3 months before the date of the application for registration under this chapter. A fashion design shall continue for a term of 3 years beginning on the date of the commencement… [Infringement can be claimed on] reasonable grounds to know that protection for the design is claimed”. [9] The Innovative Design Protection and Piracy Act, as expressed above, outlined what constitutes as a protectable fashion design, something that had been under heavy debate.

Affected designers and manufacturers

Designers included in the list of those with stolen designs and who are part of the campaign for protection include but are not limited to: Diane Von Furstenberg, Narciso Rodriquez, Zac Posen, and Yves Saint Laurent. [10] The fight is said to be not against lower priced merchants selling clothes that follow the seasonal fashion trends, but against blatant copying of runway looks, such as dresses or jackets that use the exact color, detail, and structure as pieces that had already debuted under previous designers. [10] These less expensive replicates of previous designs are impacting the luxury business in ways that cause decline in the revenue for luxury designers. [10] Instead of spending the money on a higher priced garment, they buy a cheaper duplicate from a mass producer. In this sense, the Council of Fashion Designers of American argues that their members customers are being stolen by the cheaper knock offs producers. [11]

When original designers are confronted about the issue of price, they justify their expensiveness by means of the creative effort that goes into both the design and production process. [10] This clearly includes the materials and methods used to produce top quality pieces to sell to consumers. Fashion is in all senses a distinct form of art. There are bad pieces and good pieces, but even a bad or plain painting would still be labeled as artwork. Designer pieces are expensive not only because of the brand name, but also the innovation and creativity of the product.

European designers at home have rights to their designs through the European Union, and they want those same protections for their designs in the United States. [10] In Europe, fashion designers receive twenty-five years of protection for a just revealed design in contrast to the current American proposed cap of three years. [12] In other words, they receive a generous amount of protection in one market and get absolutely nothing in the other.

Court cases

Yves Saint Laurent v. Ralph Lauren

In 1994, Yves St Laurent and Ralph Lauren went to court over a specific tuxedo dress that the accused had theoretically designed after a YSL version. [10] The ultimate outcome was the payment of $300,000 from Ralph Lauren to the House of YSL. While the court in question was in Paris, this shows the beginnings of public courts taking serious interest and incentive to protect designers from copying one another. A second example from 1994 took place in Chicago, where the company I.B Diffusion L.P. accused Montgomery Ward L.P. of knocking off a specific sweater design and mass-producing it to sell for themselves. [13] This case provides an additional example of American designers facing the challenge of competitors knocking off their designs.

The argument here describes the economic idea of competition. Without competition there leaves no room for businesses to strive for better, newer products in order to outsell each other (Fischer par. 2). When arguing against legislation, many lump copycat retailers and mass producers into this category of necessary competition. Through imitation of the original products, it “makes it available to a greater number of consumers.” [7] The fact that larger quantities of people have access not only to the product but also to knowledge of the product increases the original designers successful market base. In a roundabout method, imitation is type of advertising for the real design.

An argument put forth for this case is that few to zero customers are actually stolen through knock off retailing. Knockoffs are targeted at a market of consumers who would not be buying the original pieces anyway. [14] The degree of difference in price points from the original to the knock off means that the lower priced market consumers cannot afford the higher priced market products to begin with. In other words, designers and mass retailers cater to entirely different market segments that barely overlap. Not to mention, there is a certain amount of “piracy paradox”. When designs become mass-produced and so mass marketed, it causes market saturation to occur even sooner than it would otherwise. [14] This means that the consumers become familiar with the designs faster and faster, and so cause fashion cycles to also speed up. The time between introduction of a style and decline of a style is decreasing. This allows designers to sell different styles more often, and so increase their overall profit.

Related Research Articles

<span class="mw-page-title-main">Copyright</span> Legal concept regulating rights of a creative work

A copyright is a type of intellectual property that gives its owner the exclusive legal right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educational, or musical form. Copyright is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself. A copyright is subject to limitations based on public interest considerations, such as the fair use doctrine in the United States.

<span class="mw-page-title-main">Costume jewelry</span> Jewelry used to complement a particular costume

Costume or fashion jewelry includes a range of decorative items worn for personal adornment that are manufactured as less expensive ornamentation to complement a particular fashionable outfit or garment as opposed to "real" (fine) jewelry, which is more costly and which may be regarded primarily as collectibles, keepsakes, or investments. From the outset, costume jewelry — also known as fashion jewelry — paralleled the styles of its more precious fine counterparts.

<span class="mw-page-title-main">Counterfeit</span> Making a copy or imitation which is represented as the original

To counterfeit means to imitate something authentic, with the intent to steal, destroy, or replace the original, for use in illegal transactions, or otherwise to deceive individuals into believing that the fake is of equal or greater value than the real product. Counterfeit products are fakes or unauthorized replicas of the real product. Counterfeit products are often produced with the intent to take advantage of the superior value of the imitated product. The word counterfeit frequently describes both the forgeries of currency and documents as well as the imitations of items such as clothing, handbags, shoes, pharmaceuticals, automobile parts, unapproved aircraft parts, watches, electronics and electronic parts, software, works of art, toys, and movies.

<span class="mw-page-title-main">Industrial design right</span> Intellectual property rights

An industrial design right is an intellectual property right that protects the visual design of objects that are purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft.

Fashion law deals with legal issues that impact the fashion industry. Fundamental issues in fashion law include intellectual property, business, and finance, with subcategories ranging from employment and labor law to real estate, international trade, and government regulation. Fashion law also includes related areas such as textile production, modelling, media, the cosmetics and perfume industries, questions of safety and sustainability, dress codes and religious apparel, consumer culture, privacy and wearable tech, and civil rights. Clothing laws varies by country.

<span class="mw-page-title-main">Brand piracy</span>

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The Design Piracy Prohibition Act, H.R. 2033, S. 1957, and H.R. 2196, were bills of the same name introduced in the United States Congress that would have amended Title 17 of the United States Code to provide sui generis protection to fashion designs for a period of three years. The Acts would have extended protection to "the appearance as a whole of an article of apparel, including its ornamentation," with "apparel" defined to include "men's, women's, or children's clothing, including undergarments, outerwear, gloves, footwear, and headgear;" "handbags, purses, and tote bags;" belts, and eyeglass frames. In order to receive the three-year term of protection, the designer would be required to register with the U.S. Copyright Office within three months of going public with the design.

<span class="mw-page-title-main">Fast fashion</span> Quick retail copying of catwalk trends

Fast fashion is the business model of replicating recent catwalk trends and high-fashion designs, mass-producing them at a low cost, and bringing them to retail quickly while demand is at its highest. The term fast fashion is also used generically to describe the products of this business model, particularly clothing and footwear. Retailers who employ the fast fashion strategy include Primark, H&M, Shein, and Zara, all of which have become large multinationals by driving high turnover of inexpensive seasonal and trendy clothing that appeals to fashion-conscious consumers.

<span class="mw-page-title-main">Fashion design</span> Art of applying design and aesthetics to clothing and accessories

Fashion design is the art of applying design, aesthetics, clothing construction and natural beauty to clothing and its accessories. It is influenced by culture and different trends and has varied over time and place. "A fashion designer creates clothing for consumers, including dresses, suits, pants, and skirts, and accessories like shoes and handbags. They can specialize in clothing, accessory, or jewelry design, or may work in more than one of these areas."

The indie design movement is made up of independent designers, artists, and craftspeople who design and make a wide array of products − without being part of large, industrialised businesses. The indie design movement can be seen as being an aspect of the general indie movement and DIY culture.

<span class="mw-page-title-main">Computer & Communications Industry Association</span>

The Computer and Communications Industry Association (CCIA) is an international non-profit advocacy organization based in Washington, DC, United States which represents the information and communications technology industries. According to their site, CCIA "promotes open markets, open systems, open networks, and full, fair, and open competition." Established in 1972, CCIA was active in antitrust cases involving IBM, AT&T and Microsoft, and lobbied for net neutrality, copyright and patent reform and against internet censorship and policies, mergers or other situations that would reduce competition. CCIA released a study it commissioned by an MIT professor, which analyzed the cost of patent trolls to the economy, a study on the economic benefits of Fair Use, and has testified before the Senate on limiting government surveillance and on internet censorship as a trade issue.

<span class="mw-page-title-main">Limitations and exceptions to copyright</span> Provisions which allow for copyrighted works to be used without a license from the copyright owner

Limitations and exceptions to copyright are provisions, in local copyright law or the Berne Convention, which allow for copyrighted works to be used without a license from the copyright owner.

<span class="mw-page-title-main">Copyright infringement</span> Illegal usage of copyrighted works

Copyright infringement is the use of works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to produce derivative works. The copyright holder is usually the work's creator, or a publisher or other business to whom copyright has been assigned. Copyright holders routinely invoke legal and technological measures to prevent and penalize copyright infringement.

Fashion merchandising can be defined as the planning and promotion of sales by presenting a product to the right market at the proper time, by carrying out organized, skillful advertising, using attractive displays, etc. Merchandising, within fashion retail, refers specifically to the stock planning, management, and control process. Fashion Merchandising is a job that is done world- wide. This position requires well-developed quantitative skills, and natural ability to discover trends, meaning relationships and interrelationships among standard sales and stock figures. In the fashion industry, there are two different merchandising teams: the visual merchandising team, and the fashion merchandising team.

Counterfeit consumer goods—or counterfeit, fraudulent, and suspect items (CFSI)—are goods, often of inferior quality, made or sold under another's brand name without the brand owner's authorization. The colloquial terms knockoff or dupe (duplicate) are often used interchangeably with counterfeit, although their legal meanings are not identical.

Fashion forecasting began in France during the reign of Louis XIV. It started as a way of communicating about fashion and slowly transformed into a way to become ahead of the times in the fashion industry. Fashion forecasting predicts the moods of society and consumers, along with their behavior and buying habits and bases what they may release in the coming future off of the forecast. Fashion trends tend to repeat themselves every 20 years, and fashion forecasting predicts what other trends might begin with the rotation of fashion as well. Fashion forecasting can be used for many different reasons, the main reason being staying on top of current trends and knowing what your consumer is going to want in the future. This method helps fashion brands know what to expect and what to begin producing ahead of time. Top name brands and high end companies such as Vogue and Gucci even use this method to help their designers become even more informed on what is to come in the fashion industry.

The replica furniture industry was developed in the mid-2000s as a means to legally produce furniture designs that no longer held valid copyright protection. Many replica furniture companies are based in the UK. The current furniture copyright laws in the UK differ from much of the rest of Europe, allowing designer furniture to be reproduced, distributed, and purchased. Most replica furniture companies produce items originally designed by 20th Century Scandinavian and American designers, some of the most popular being Arne Jacobsen, Charles Eames, and Hans J. Wegner. As of 2015, the industry accounts for thousands of EU jobs and turns over tens of millions of pounds per year.

Massification is a strategy that some luxury companies use to expose their brands to a broader market and increase sales. As a method of implementing massification, companies have created diffusion lines. Diffusion lines are an offshoot of a company or a designer's original line that is less expensive in order to reach a broader market and gain a wider consumer base. Another strategy used in massification is brand extensions, which is when an already established company releases a new product under their name.

Star Athletica, LLC v. Varsity Brands, Inc., 580 U.S. ___ (2017), was a U.S. Supreme Court case in which the court decided under what circumstances aesthetic elements of "useful articles" can be restricted by copyright law. The Court created a two-prong "separability" test, granting copyrightability based on separate identification and independent existence; the aesthetic elements must be identifiable as art if mentally separated from the article's practical use, and must qualify as copyrightable pictorial, graphic, or sculptural works if expressed in any medium.

Fashion design copyright refers to the web of domestic and international laws that protect unique clothing or apparel designs. The roots of fashion design copyright may be traced in Europe to as early as the 15th century.

References

  1. ↑ Star Athletica, slip op. at 11.
  2. ↑ "Copy Right Law." Niles' Weekly Register (1814-1837) Jul 02 1831: 319-. American Periodicals. Web. 10 Feb. 2013 .
  3. ↑ Surowiecki, James. "The Piracy Paradox." The New Yorker 83.28 (2007): 90. MasterFILE Complete. Web. 10 Feb. 2013.
  4. ↑ Salmon, J.H.M."Francis I (France)." Encyclopedia. Issues & Controversies. Facts On File News Services, n.d. Web. 4 Mar. 2013
  5. ↑ (Fischer Par. 8)
  6. ↑ (Fischer Par. 2)
  7. 1 2 Fischer, Fridolin. “Design Law in the European Fashion Sector” WIPO February 2008. Web. 10 Feb 2013
  8. ↑ Wilson, Eric (2007-08-09). "Senate Joins Knockoff Battle". The New York Times. ISSN   0362-4331. Archived from the original on 2020-04-27. Retrieved 2020-04-27.
  9. 1 2 United States. Cong .House. “Protection for Fashion Design”. U.S. 109th Congress. H.R. 5055. Thamas Lib. Of Congress, 30 March 2006. Web. 10 Feb. 2013.
  10. 1 2 3 4 5 6 Wilson, Eric (2006-03-30). "O.K., Knockoffs, This Is War". The New York Times. ISSN   0362-4331. Archived from the original on 2020-04-27. Retrieved 2020-04-27.
  11. ↑ Tan, Irene. "Knock It Off, Forever 21! The Fashion Industry's Battle Against Design Piracy." Journal of Law & Policy 18.2 (2010): 893-924. Academic Search Complete. Web. 10 Feb. 2013
  12. ↑ Ferrel, Elizabeth and Tina Tanhehco. “Protecting the Material World: the Role of Design Patents in the Fashion Industry”. HeinOnline (2010-2011):253. Web. 25 Feb 2013
  13. ↑ Veverka, Mark. "Apparel Maker to Ward's: Hey, Big Guy, Knock it Off." Crain's Chicago Business May 02 1994: 4-. ABI/INFORM Complete. Web. 10 Feb. 2013
  14. 1 2 Surowiecki, James. "The Piracy Paradox." The New Yorker 83.28 (2007): 90. MasterFILE Complete. Web. 10 Feb. 2013
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