By Yaseen Eldik and Megan Michaels
“I am not interested in shock tactics. I just want to make beautiful clothes.” -Oscar De La Renta
Fashion is an ubiquitous force in daily life. What to wear—and certainly what not to—is a deliberate choice for most individuals—a choice that inevitably forms a part of one’s identity. This manner of self-expression plays an ineluctable role in how one presents oneself socially and how one is perceived by others.1 As humans subconsciously and consciously react to visual cues, they judge others based on the clothing they wear. The Oxford English Dictionary captures the ambidexterity of the word “fashion”: it is to “make, build, shape; [so] in [a] wider sense, [it includes] visible characteristics [and] appearance [which can be] said both of material and of immaterial things.”2 This definition recognizes that fashion is a form of art.”3
Why then, have fashion designs been denied the same protection under United States’ intellectual property laws that other art forms, such as painting, sculpture, and even architecture, have been granted? The most common argument is that copyright law does not extend to fashion because clothing is strictly a “useful article”4 that serves the purpose of covering and protecting one’s body, and copyright does not protect utilitarian works.5 Others argue that fashion trends are fleeting and are recycled too often in order to warrant any period of protection.6 However, these and similar arguments do not adequately address the present text of the newest legislative proposal, the Innovative Design and Protection and Piracy Prevention Act (IDPPPA).
Fashion is a critical component of the United States economy and one of the most pervasive features of American culture; and as such, every designer and consumer is affected by the implications of this debate. Therefore, the United States must amend its current statutes or propose new regulations to grant property rights to designers and legal protection to their original ideas. This article intends to present to proponents and critics of design protection, a framework for reaching an agreement. Reframing the debate can help achieve a level of consensus such that a design copyright bill, like the IDPPPA, can be passed successfully. This article will examine the current laws that provide limited rights to designers in the United States. It will then evaluate the arguments that are made against the extension of copyright law proposed in the IDPPPA. Finally, the article will demonstrate the negative effect that the lack of design right has on the American economy, contrast the domestic legal regime with the European landscape, and recommend amendments to U.S. law based on European precedent.
*Yaseen Eldik and Megan Michaels are second year JD students at Harvard Law School.
1The Value of Style, Psych. Today (July 1, 2005), http://www.psychologytoday.com/articles/200507/the-value-style.
2Fashion, Oxford English Dictionary, http://www.oed.com.ezp-prod1.hul.harvard.edu/view/Entry/68389?rskey=1MFaOV&result=1#eid (last visited Sept. 25 2014).
3Art is “The expression or application of creative skill and imagination, typically in a visual form such as painting, drawing, or sculpture, producing works to be appreciated primarily for their beauty or emotional power.” Art, Oxford English Dictionary, http://www.oed.com.ezp-prod1.hul.harvard.edu/view/Entry/11125?rskey=tgrlPJ&result=1&isAdvanced=false#eid (last visited Sept. 25 2014).
4Useful article is defined in 17 U.S.C.S. § 101 as one with “an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.”
5Boyds Collection v. Bearington Collection, Inc., 360 F. Supp. 2d 655, 661, (M.D. Pa. 2005).
6See Xiao, Emma Yao, Note, The New Trend, Protecting, American Fashion Designs Through National Copyright Measures, 28 Cardozo Arts & Ent. L.J. 417, 436 (2011).