Protection of Design with Copyright Law

Design in many forms is offered protection by intellectual property law.  Creators of new drugs or devices can apply for patent protection.  Movies, music, and literature are given copyright protection.  Brands and logos can be trademarked.  With respect to apparel, however, the protection offered to designers differs significantly.  Beyond the basic protection of a signature or exclusive fabric pattern, there is little a designer can do to protect the form, structure, and tailoring of her work once she sends it down a runway in the United States.

Fashion is an international, multi-billion dollar industry. The New York fashion industry alone generates $47 billion in sales annually. [1] In 2005, the U.S. clothing industry generated $181 billion in sales. [2] Thus far in 2007, apparel companies listed on the NYSE such as Ralph Lauren and J. Crew show market caps of $7.89 billion and $2.7 billion, respectively. [3] Yet despite the steady market and investment dollars, the U.S. does not offer copyright protection to apparel designs. Though a visual piece of art with no utilitarian function may be protected by current copyright law, functional wardrobe design remains open to piracy. [4]

Counterfeit fashion items are hardly a new problem in this country. In the 1930s, designers attempted to protect their work by forming an organization dedicated to monitoring retailers and keeping track of original designs. [5] Retailers caught selling copies of originals would not be allowed to purchase further items made by the organization’s designers. However, in 1941 the Supreme Court held that this organization ran counter to the public policy declared in the Sherman and Clayton Acts, and that the Federal Trade Commission had the power to suppress it as an unfair method of competition. [6]

Since that time many of the lawsuits filed by designers in the U.S. have been limited to trademark law and protected fabric design and/or patterns. [7] The ultimate concept and design of an article of clothing remains unprotected, and with digital technology the clothing can be photographed on a runway in New York City, emailed to manufacturers overseas for copying and production, and shipped to U.S. retailers in a matter of weeks. [8] Produced in larger numbers and priced far less than the original, these counterfeits quickly outsell, then outdate, the original design, leaving the original designer with less market room.  Clothing aside, counterfeit handbags and sunglasses by themselves reportedly account for $12 billion in lost sales, though a more concrete number is more difficult to calculate given the lack of regulation in the counterfeit industry. [9]

Designers argue that this is fundamentally unfair - that their creative process, what might be termed “research & development” in another industry, should be protected in this country as it is overseas. [10] The investment required by a large fashion house, let alone an independent designer, is undeniably steep; a single fashion show in New York City’s Bryant Park, clocking in at roughly 20 minutes, can cost as much as $300,000 to produce. [11] Given that major designers showcase two seasons a year at multiple venues across the globe, a multi-million dollar expense can be easily be accumulated. Design piracy robs designers of the ability to recoup on this investment of time, energy and money, and allows counterfeiters to profit with little to no effort of their own. At the very least, “the perception of fashion as art suggests that designers should receive intellectual property rights comparable to those of their peers in other creative industries.” [12]

Opponents, however, argue that high-end designers are demonstrating no economic loss despite the increasing amount of piracy. The “Piracy Paradox” theorizes that counterfeit items actually benefit the fashion industry by inducing a need in middle to upper-class buyers for items that are new and original, and not currently owned by mass consumers. [13] It has also been suggested that copyright protection would only serve to stifle the industry by limiting the techniques, cuts and patterns available for use by designers in their production. [14] Moreover, from a practical standpoint it is not difficult to imagine how tenuous regulating copyright protection for fashion designs could be; after all, what is the line between inspiration and copying, and who is qualified to make that decision?

Since 1914 Congress has considered, but never passed, more than seventy bills designed to give copyright or copyright-like protection to clothing designs. [15] Nevertheless, this year both Houses introduced yet another entitled the Design Piracy Prohibition Act – H.R. 2033 and S. 1957. Influenced in part by the copyright protection currently afforded in the European Union, the bill offers a protection period of three years for clothing, footwear, headwear, handbags, belts, and eyeglass frames that are registered within three months after the design is first made public. Recovery for infringement is valued at $250,000 or $5 per copy. [16] [17] Though critics remain unsatisfied with the language’s lack of specificity and the bill’s limited remedies, numerous designers as well as the Council of Fashion Designers of America are publicly rallying support for the bill. Whether it will be signed into law or perish in committee remains to be seen.

   
[1]  Robin Givhan, The End of Gown in 60 Seconds?, Washington Post, Aug. 10, 2007, available at 2007 WLNR 15467249.
[2]  Lauren C. Marshall, Catwalk Copycats: Why Congress Should A Modified Version of the Design Piracy Prohibition Act, 14 J. Intell. Prop. L. 305, 310 (2007).
[3]  http://finance.yahoo.com (last visited Oct. 5, 2007).
[4]  Marshall, supra note 2 at 324.
[5]  James Surowiecki, The Piracy Paradox, The New Yorker, Sep. 24, 2007, available at http://www.newyorker.com/talk/financial/2007/09/24/070924ta_talk_surowiecki.
[6]  Fashion Originators' Guild of Am. v. Fed. Trade Comm’n, 312 U.S. 457, 467 (1941). 
[7]  See also Levi Strauss Co. v. Fox Hollow Apparel Group, LLC, No. C-06-3765 SC, slip op. (N.D.Cal. April 17, 2007); Magical Mile, Inc. v. Beonwitz, No. 06-22929-CIV, 2007 WL 1240200 (S.D.Fla. Apr. 27, 2007).
[8]  Eric Wilson, Before Models Can Turn Around, Knockoffs Fly, The New York Times, Sep. 4, 2007, available at 2007 WLNR 17221799.
[9]  Id.
[10]  Givham, supra note 1.
[11]  Willow Duttge, How Much Does a Fashion Show Cost?, at http://video.portfolio.com (last visited Oct. 5, 2007).
[12]  Marshall, supra note 2 at 323.
[13]  Kal Raustiala & Christopher Sprigman, The Piracy Paradox:  Innovation and Intellectual Property in Fashion Design, 92 Va. L. Rev. 1687, 1718-21 (2006). 
[14]  Id. at 1722.
[15]  Marshall, supra note 2 at 314.
[16]  Design Piracy Prohibition Act, H.R. 2033, 110th Cong. (2007).
[17]  Design Piracy Prohibition Act, S. 1957, 110th Cong. (2007).