Fashion Designer Research Paper

Curtailing Copycat Couture
“This New York Fashion Week, models and editors are stylishly dressed but fashion designers are naked. Legally naked, that is” (Scafidi, Rodriguez, NYT). Fashion design is a form of art. Currently there is no set of copyright laws to protect fashion design. Consequently, especially within the past 10 years, fashion designers have struggled to protect their form of art. Americans concerned with the future of the fashion industry started to stand up for the industry and propose acts to protect it, yet none have been successful enough to pass. Based on information from The Council of Fashion Designer Association, most fashion designers would agree, this needs to change. Fashion designers should have fashion design copyright

laws because it is the only art that does not have copyright laws. Implementing these laws would lead to equal treatment amongst designers of different countries, and create more “accessibility” to success for designers, especially emerging and independent designers.
Unlike designers from other fashion capitals of the world such as London, Milan and Paris, American fashion designers lack the property protection that would prevent fashion week’s latest couture from walking into the hands of copyists. In 1790, the United State’s first copyright ruling states that only books, charts, and maps would be protected. Overtime the US gave more works of art, such as music and paintings, protection but fashion never made the cut. However, “[t]he few legal tools that do protect limited elements of apparel in the U.S. have served as the foundation of influential fashion empires – Ralph Lauren’s trademarked polo pony and Levi Strauss’ formerly patented metal rivets on jeans come to mind – but for the most part, fashion is excluded from the legal protection” (Roth).
Because fashion designers do not have copyright protection, US fashion designers have relied on other forms of intellectual property rights, such as trademark, patents, and common law rights, to try to protect their works from piracy.

These trademarks and patents do not protect the creative side of their designs enough. To clarify, patents, trademarks, and copyrights are specifically different. Trademarks are distinctive marks, names, and/or logos used to distinguish a product, which enable consumers to identify an item as the designer's work. They can be renewed unlimitedly, but a trademark does not protect the overall design. Trademark law therefore offers relatively little protection against copyists as opposed to counterfeiters. Patents protect functional expressions of an idea – not the idea itself. Copyrights protect the specific creative expression of an idea through any medium of artistic/creative expression

(Truex).
The 1st bill, addressing the disagreement among legal experts and representatives of the fashion industry about whether there was a need for copyright protection, was introduced in 2006.

The Design Piracy Prohibition Act was introduced to the House in 2009, and stated that copyright protection should be at the digression of fashion designers. It would require applicants submit an application for design registration within six months after the design is made public, and it would protect the design for three years. This act would provide protection for "the appearance as a whole of an article of apparel, including its ornamentation”, and declare that it is not infringement to make or sell any article if they don’t claim protection. In August 2010 Senator Chuck Schumer and ten co-sponsors introduced the Innovative Design Protection and Piracy Prevention Act. Then in December 2010 the Senate Committee on the Judiciary voted unanimously for the bill to finally proceed to the Senate floor. Under the IDPPPA, a copy of a design would be infringed if it was found to be "substantially identical" to the original work with little to no changes to set that design apart. A "fashion design", under the IDPPPA, would be defined as an entire article of apparel including its embellishment and also includes elements of the original apparel that are the creative work of the original designer and are unique. Once again Senator Chuck Schumer and ten co-sponsors introduced The Innovative Design

Protection Act in 2012. On September 20, 2012, the Senate Committee on the Judiciary voted for the bill to proceed to the Senate floor without amendment but did not proceed past the senate (S.3523).
The first side of the argument is the people who are for copyright protection laws, and are in favor of all these proposed acts. They believe fashion designs are a work of art and deserve the same protection as other art mediums such as paintings and literature. Designers are also starting to get involved and raise awareness about the lack of copyright laws. The Council of Fashion Designer Association, along with the American Apparel & Footwear Association, “represent more than 700 manufacturers and suppliers and by its estimate accounts for about 75 percent of the industry’s business” also support the Innovative Design Protection and Piracy Prevention Act. A couple years ago the CFDA also started a campaign called “You Can’t Fake Fashion” to raise awareness (Horyn).
Some of the issues that arose from these acts included the following. Fashion, like other fine arts, can be a way one can express herself in a unique way with inspiration from popular culture and media. Fashion has practical qualities that impact the perception that it is, in fact, an art that can be original. This is where one might find grey areas. Most Americans do not assess plagiarism of fashion designs in the same way they might regard literary piracy. So while all might agree that the sale of counterfeit goods should be illegal, copying seems to present a more complicated issue. Scafidi addressed the question [w]hy should a painting or a sculpture of a dress receive greater copyright protection than the dress itself?”
Other Proponents in favor of copyright protection urge that punishing design piracy coincides with the general ethical consensus that copying the work of others without their approval and acknowledgement is immoral. Plagiarism is a huge moral and ethical issue. By creating a plan of copyright protection, we would be distinguishing the significance of original designs, and including it among the protected works of art such as literature and music. Protection would also give designers the opportunity to reward themselves for the substantial investment they make to develop and market their designs. A lot of work goes on behind the scenes to launch a collection of clothing, and knowing that now no one is allowed to copy their designs, one can imagine, is very intrinsically rewarding. This way the original designer gets credit for the creation, not the big department store selling a similar item for a fraction of the price (Roth).
The average lifetime of a design is three years. With the suggested protection period of 3 years, this allows a designer to ensure no one will copy their work for the lifetime of the design. After the three year period is up, designers have the right to base their designs off the work as inspiration. Another key concept to this proposal is that it would shelter only apparel and accessories sufficiently distinctive to constitute original work. That would mean items considered fashion staples, such as the plain white tee shirt, or little black dress, would not be protected. Even within a style, there must be sufficient originality in the elements or combination of elements to secure copyright protection. This would include details like buttons, type of material, color, structure, and fit amongst other qualities. Only fashion items that are almost identical would be considered infringement. The objective is that the individuals who are the intentional copyists will be punished (Ehrhard).
Proponents also argue that without copyright laws, technology, the Internet, and social media actually hinder fashion designers. Through advancements in technology, copied designs are not only available, but also immediately visible via the Internet. Online retailers willingly offer to sell cheaper imitations of designer products, and make a point that the consumer is getting an unbeatable price on the apparel. Print media also direct consumers to how to get clothing substantially similar to items worn by celebrities or models at only a small percentage of the cost of the original. “The Internet allows images of fashion creations to appear online simultaneously with or soon after designs are first exhibited on the runway. Indeed, knockoffs can reach mass marketers, such as Forever 21, before the originals reach the department stores and boutiques” (Roth).