Fashion, Design and The Law

Fashion, Design and The Law

by David Adler
Originally published on

©Copyright 2012 David M. Adler All Rights Reserved.

Charles Colton famously stated “Imitation is the sincerest (form) of flattery.” This has never been more true than in the fast-paced world of fashion where designers constantly draw on prior art for inspiration. As Tim Gunn (mentor to would-be fashion designers on the television show Project Runway) often says, “Make it your own.”

While each fashion designer brings a distinctive perspective and fashion sense to her craft, starting a fashion/design company is really no different than starting any other business that derives value from creative content. For many designers the questions most often asked are “How do I protect my designs” and “What do I do if other people copy me?”

Fashion design ideas typically involve two separate but related concepts: first, the designer’s “brand” or identity, second, the embodiment of the designer’s ideas, the designs themselves. Brands are typically protected through application of trademark laws, a complex and highly nuanced area of IP law, the discussion of which is outside the scope of this article. Rather, we are focused here on answering the question “How do I protect my designs?”

The primary way for the fashion designer to protect her ideas is Copyright law. Copyright protects “creative works of authorship fixed in a tangible medium of expression.” Unfortunately, copyright protection also requires a certain amount of “originality.” Since so much of fashion is derivative of what has come before, it is difficult to create a design that is sufficiently original to prevent others from creating one that is strikingly similar.

Another limitation on protection is the tension with Section 102(a)(5) of the Copyright Act. [17 U.S.C. § 102(a)(5)] That section protects “pictorial, graphic, and sculptural works” including “two-dimensional and three-dimensional works [of artistic craftsmanship] of fine, graphic, and applied art … if, and only to the extent that, such design incorporates features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” Under this definition, a clothing design may be eligible for protection.

Courts have viewed this requirement as a balance between “physical separability” and “conceptual separability,” a distinction which they have struggled to pin down. However, courts that have addressed the issue have routinely viewed clothing garments as utilitarian because they “cover the wearer’s body and protect the wearer from the elements.”

To illustrate, consider the (in)famous meat dress worn by Lady GaGa. In this example, the “concept” of a garment composed of meat is separable from the function, covering the body. Put another way, “meat” had no function as a garment until someone came up with the idea of making it into the form of a dress.

Contrast that with, say, shoes that have a bright orange sole. The color of the sole of the shoe is irrelevant to its function. The concept of the sole of the shoe is not. In other words, regardless of the color, the sole of a shoe serves a primarily utilitarian purpose. Merely changing the color does not conceptually alter its function.

More recently, Congress has started to re-examine whether a designer should be entitled to some protection for the creativity of her designs. This potential avenue for protection is somewhat novel and as yet nonexistent. I am referring to the not-yet-enacted “Fashion Bill” a/k/a the “Innovative Design Protection and Piracy Prevention Act,” H.R. 2511 (“IDPPPA”). On July 13, 2011, Congress once again took up consideration of IDPPPA. The current version of the bill would amend the Copyright Act to extend certain protections to fashion designs.

If enacted, the law would be the extension of design protection to fashion designs, by amending §1301(a) of the Copyright Act to provide that “A fashion design is subject to protection under this chapter” and by amending §1302(b) to include “an article of apparel” in the definition of “useful articles” subject to protection. The bill would make clear that for purposes of protection, a fashion design is the appearance as a whole of an article of apparel, including its ornamentation. The bill elaborates on what would constitute apparel: “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.”

Notably, the duration for such protection would be considerably less than customary copyright protections. The term of protection for fashion designs would be only 3 years.

Proponents of the legislation have explained that the purpose of the legislation is to protect designs of haute couture during the period of time in which such high-end clothing is sold at premium prices of thousands of dollars and to prevent others from marketing clothing with those designs at substantially lower prices during that initial period, thereby undercutting the market for a hot new fashion design. Because the peak demand for such designs is relatively short-lived, a 3-year term is considered adequate to satisfy the designer’s reasonable expectation of exclusivity.

Fashion design occupies a unique position in the world of creative endeavors. On the one hand, tastes, styles and market conditions change, putting a premium on innovative ideas and creative expression. Intellectual Property law was designed to incentivize such creativity by granting creators protection from unfair competition and theft of original ideas. On the other hand, so much of fashion design is derivative and driven by the overwhelmingly functional considerations. IP law must balance incentives with the needs of the marketplace and freedom to express one’s creative ideas without being unduly constrained by what has come before.

So what’s a designer to do? As the esteemed Mr. Gunn says, “make it your own.” From a more practical perspective, consult with your IP lawyer early and often. Although aspiring designers may not have the financial ability to retain most larger firms with a well-trained IP staff, many firms, like mine, focus on helping nascent creative professionals by providing reduced-fee and flat fee services that will help our younger clients today and avoid costly problems that may arise later.

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