Although fashion design in United States copyright law is an intellectual property concept dating back to the 1750s, copyright protection has never been extended to fashion designs. As of late 2015, fashion designs were not subject to copyright laws in the United States, and could not be copyrighted. [1] [2]
The beginnings of copyright law began with editorial copyrights in the 1750s. [3] 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. [4] 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.
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. [5] 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. [6] 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.” [7] 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. [8]
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. [9] 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. [10] 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”. [10] 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.
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. [11] 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. [11] These less expensive replicates of previous designs are impacting the luxury business in ways that cause decline in the revenue for luxury designers. [11] 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. [12]
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. [11] 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. [11] 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. [13] In other words, they receive a generous amount of protection in one market and get absolutely nothing in the other.
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. [11] 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. [14] 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.” [8] 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. [15] 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. [15] 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.
Copyright is a type of intellectual property that gives its owner the exclusive right to make copies of 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.
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The most well-known types are copyrights, patents, trademarks, and trade secrets. The modern concept of intellectual property developed in England in the 17th and 18th centuries. The term "intellectual property" began to be used in the 19th century, though it was not until the late 20th century that intellectual property became commonplace in the majority of the world's legal systems.
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 thing. 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, software, works of art, toys, and movies.
An industrial design right is an intellectual property right that protects the visual design of objects that are not 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 is a specific field of law that 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, including questions of safety and sustainability; dress codes and religious apparel; consumer culture; privacy and wearable tech; and civil rights. Fashion law also includes related areas such as textile production, modeling, media, and the cosmetics and perfume industries.
Industrial property is one of two subsets of intellectual property, it takes a range of forms, including patents for inventions, industrial designs, trademarks, service marks, layout-designs of integrated circuits, commercial names and designations, geographical indications and protection against unfair competition. In some cases, aspects of an intellectual creation, although present, are less clearly defined. The object of industrial property consists of signs conveying information, in particular to consumers, regarding products and services offered on the market. Protection is directed against unauthorized use of such signs that could mislead consumers, and against misleading practices in general.
Intellectual property rights (IPRs) have been acknowledged and protected in China since the 1980s. China has acceded to the major international conventions on protection of rights to intellectual property. Domestically, protection of intellectual property law has also been established by government legislation, administrative regulations, and decrees in the areas of trademark, copyright, and patent. This has led to the creation of a comprehensive legal framework to protect both local and foreign intellectual property. Despite this, copyright violations are common in the PRC. The American Chamber of Commerce in China surveyed over 500 of its members doing business in China regarding IPR for its 2016 China Business Climate Survey Report, and found that IPR enforcement is improving, but significant challenges still remain. The results show that the laws in place exceed their actual enforcement, with patent protection receiving the highest approval rate, while protection of trade secrets lags far behind. Many US companies have claimed that the Chinese government has stolen their intellectual property sometime in 2009–2019.
The World Intellectual Property Organization's Protection of Broadcasts and Broadcasting Organizations Treaty or the Broadcast Treaty is a proposed treaty designed to afford broadcasters some control and copyright-like control over the content of their broadcasts.
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 extend 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.
Fast fashion is a term used to describe a highly profitable and exploitative business model based on replicating catwalk trends and high-fashion designs, and mass-producing them at low cost. The term fast fashion is also used to generically describe the products of the fast fashion business model. The fast fashion business model was made possible during the late 20th century as manufacturing of cloth became cheaper and easier, through new materials like polyester and nylon, efficient supply chains and quick response manufacturing methods, and inexpensive labour in sweatshop production and low-labour protection bulk clothing manufacturing industries in South, South East, and East Asia. Companies like H&M and Zara, built business models based on inexpensive clothing from the efficient production lines, to create more seasonal and trendy designs that are aggressively marketed to fashion-conscious consumers. Fast fashion applies an extreme version of planned obsolescence to clothing. Because these designs are changing so quickly and are so cheap, consumers buy more clothing than they would previously, so expectations for those clothes to last decrease. Stealing designs is also common.
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, including dresses, suits, pants, and skirts, and accessories like shoes and handbags, for consumers. He or she 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.
Consumer protection is the practice of safeguarding buyers of goods and services, and the public, against unfair practices in the marketplace. Consumer protection measures are often established by law. Such laws are intended to prevent businesses from engaging in fraud or specified unfair practices in order to gain an advantage over competitors or to mislead consumers. They may also provide additional protection for the general public which may be impacted by a product even when they are not the direct purchaser or consumer of that product. For example, government regulations may require businesses to disclose detailed information about their products—particularly in areas where public health or safety is an issue, such as with food or automobiles.
Limitations and exceptions to copyright are provisions, in local copyright law or Berne Convention, which allow for copyrighted works to be used without a license from the copyright owner.
Digital rights management (DRM) tools or technological protection measures (TPM) are a set of access control technologies for restricting the use of proprietary hardware and copyrighted works. DRM technologies try to control the use, modification, and distribution of copyrighted works, as well as systems within devices that enforce these policies.
Copyright infringement is the use of works protected by copyright law 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 make derivative works. The copyright holder is typically 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.
Counterfeit consumer goods are goods, often of inferior quality, made or sold under another's brand name without the brand owner's authorization. Sellers of such goods may infringe on either the trademark, patent or copyright of the brand owner by passing off its goods as made by the brand owner. Counterfeit products made up 5 to 7% of world trade in 2013, and in 2014 cost an estimated 2.5 million jobs worldwide, with up to 750,000 jobs lost in the U.S. About 5% of goods imported into the European Union in 2013 were fakes, according to the OECD.
Iran is a member of the WIPO since 2001 and has acceded to several WIPO intellectual property treaties. Iran joined the Convention for the Protection of Industrial Property in 1959. In December 2003 Iran became a party to the Madrid Agreement and the Madrid Protocol for the International Registration of Marks. In 2005 Iran joined the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, which ensures the protection of geographical names associated with products. As at February 2008 Iran had yet to accede to The Hague Agreement for the Protection of Industrial Designs.
Star Athletica, LLC v. Varsity Brands, Inc., 580 U.S. ___ (2017), was a Supreme Court of the United States 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 on conditions of separate identification and independent existence. In other words, 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.
Although elements of fashion design copyright may be traced in Europe to as early as the 15th century, as of 2016 most countries fashion design does not have the same protection as other creative works, because apparel are classified as "functional items", excluded from protection by copyright laws. This explains the success of the knockoff businesses to the detriment of both the established labels, as well as of emerging designers, the latter ones being especially damaged, because they rely on relatively few designs.
