Whither Fashion Copyright?

The Innovative Design Protection Act (S.3523) would extend copyright protection for three years to fashion designs, including “undergarments, outerwear, gloves, footwear, and headgear; handbags, purses, wallets, tote bags, and belts; and eyeglass frames.” (Bill text.) Despite being introduced in every Congress since 2006, the bill has barely eked out of committee and no version has been brought to a floor vote.

On the surface, it seems that Congress should have done more with this proposal. It would make U.S. law commensurate with designer protections in France, Canada, and other countries. Supporters argue this would save U.S. jobs and constrain foreign pirates from stealing American ingenuity. Congress has previously carved out copyright protections for other useful articles. And there is a popular industry lobby behind the proposal. What’s more, the courts have recently protected fashion designs. So why haven’t the authors of the bill celebrated yet?

Bad politics?

1. Because fashion design in the U.S. is centered in a relatively few locales, it doesn’t yield political gains to a sufficient number of congressional districts or states. But this explanation is a false start because legislation like this gets logrolled all the time.

2. It is simply a bad idea and doesn’t pass even Washington’s sniff test. This ascribes much credit to Congress in sifting good ideas from bad.

3. The lobby, while part of it is popular and noticeable, is not unified behind the idea. High-end designers have been backing the idea from the start, but clothing and shoe makers dug in their heels early and later came on board nominally (they prefer reducing import tariffs).

Bad timing?

4. A version of the fashion copyright bill was first introduced in the House in 2006, just as the housing bubble was going pop. With Washington focused on the financial crisis, terrorism, and unemployment, and with a growing public furor over economic inequality, the deck has been stacked against distributing rents to high-end designers.

5. Increased party polarization over the past decade has made it difficult to establish winning coalitions for bills like these. A few days ago I asked Chris Sprigman (co-author of “The Piracy Paradox”) about this. He said, “That’s generally true, but hasn’t been true of copyright. Copyright has mostly been bipartisan.” While he and Kal Raustiala predicted after the recent election that the GOP could potentially take a more reluctant stance on copyright: “then as if on cue, the whole Republican Study Committee fracas over the “anti-copyright” report erupted.” Chris elaborates here.

In sum: It’s conceivable the bill could just hang around long enough and a political opportunity will emerge. Yet having barely made it out of committee, and with no floor vote in either chamber, the proposal hasn’t been put to a serious political test. So it could just be too politically risky. Everyone buys clothes and shoes, and they presumably like that they’re spending less and less on apparel. Plus, through their regular shopping experiences, they can also see vividly that knockoffs are the reason they have inexpensive options. Do elected officials really want to test those waters? It’s difficult to see a winning coalition forming against the potential backlash that fashion copyright would generate.

More on these issues from MR:

Alex covered the rapid cameo of the Republican Study Committee’s “radical but sensible position paper on copyright.

Tyler covered “The Piracy Paradox” in his February 2006 entry, “How does the fashion industry work without copyright?” See also his: “Can we do without digital rights management?” and why the economics of food recipes resists copyright (“Food relies so much on execution…”); and why the French prioritize copyright.


"What’s more, the courts have recently protected fashion designs"

Say what?

I assume he's talking about the "red shoeheel" case. Loubitton v. somebody, I think. Basically, for those who don't know, a certain expensive shoe manufacturer made all its shoes, of every design, with a bright red heel. Other manufacturers tried to copy this, and the original manufacturer sued to shut it down and won.

The difference is, the red heel was not a copyright, it was a trademark, in that it was a well-established and well-known (among shoe aficionadas, at least) identifier of a certain brand or manufacturer. No different, legally, from Ralph Lauren's little picture of a guy on a horse.

As I tell everyone who will listen, the primary difference between trademark and copyright is that trademark is intended to protect the *consumer* while copyright is intended to protect the *creator.* The reason some other company can't make a shirt with the horse guy, or a shoe with a red heel, is that those features are closely identified with a specific manufacturer, and are not integral to the design of the item itself. Therefore, the only reason for another company to use those features is to trick people (either the purchaser or those who see the purchaser with the item) into believing that the item was made by that famous brand - RL or Loubitton - with all the guarantee of quality and/or social cache that brings. Copyright -- which is protection of features integral to the design itself, and which is not used primarily as a source identifier -- is a whole nother ballgame.

ps -whenever I type a long comment like above, I've developed the habit for hitting ctrl-C before I post, in case of the dreaded "posting comments too quickly" message. Incentives matter.

At least in Chrome, if I hit 'back' the comment is still there. Usually.

And with respect to copyright, Cliff is clearly correct that courts will not protect fashion designs. Just a couple of months ago the Second Circuit (which covers NY, center of fashion design industry) held:

"Jovani nevertheless maintains that the prom dress at issue merits copyright protection because its design constitutes a combination of features “that can be identified separately from and are capable of existing independently of, the utilitarian aspects of the article,” 17 U.S.C. § 101, specifically, the arrangement of decorative sequins and crystals on the dress bodice; horizontal satin ruching at the dress waist; and layers of tulle on the skirt. We are not persuaded."

Note that the court disposed of this case in a 4 page "summary order," which is courtspeak for "the legal issues in this case are so obvious it's not worth our time to discuss them in detail." The opinion cites a whole series of other cases holding that, in no uncertain terms, there is no copyright protection in fashion designs.


However, there can be copyright protection for things like designs ON clothing. You can also get design patents for clothing (usually too expensive, though). But I don't think there have been any recent changes in the relevant law in either trademark or copyright (or design).

Any answer to this question I could give in a blog comment would be incomplete. I can't give you a legal opinion on this, but it seems to me the basic economic difference is in the nature of the product. Unlike music, but like movies (and books in a certain way), production and sale of clothing requires a large capital investment in order to be profitable. Unlike (or relative to) movies, "copying" clothing requires quite a bit of of material and labor. Also unlike e-books, movies, and music, the production, distribution, and sale of clothes requires a significant capital investment. You still cannot "download" a dress (right?). This means the fashion industry is not really threatened by pirates or small producers b/c they don't have the capital to threaten the existing business model. Copyright provides little benefit to new entrants because what they really need is capital to produce and market their goods. Real money is in widespread distribution and notoriety. To the extent that people want fashion products, having the right brand name is a big part of the draw (and other distinctive fashion industry dynamics play a role). This means the industry could use trademark protections to prevent "piracy," as Urso points out above, and they do in a way that prevents large-scale competition. The purpose of IP is to provide a temporary monopoly in order to encourage creative works. Copyright in fashion would provide little benefit to the creators since the real barrier to making money on their creation is not competition from pirated copies (b/c reproducing their goods is not easy), but the production and sale of their goods (because it is costly). Someday when it becomes easier to copy fashion goods capitalists might push for IP protection (on behalf of creators, of course. Ha!), but for now they hold all the cards and have no incentive to really push Congress for regulation.

Caveat: It is less a matter of capital per se than human capital and cash flow to fund operations. Machines are better and cheaper every year but paying wages to skilled labor for rapid turnaround (engineering) and sourcing is another thing -you need a distribution network for cash flow.

Ironically, it is the smallest of producers who are most obsessed with IP when their greater concerns (as Dana mentions) should be funding operations. Rarely are start ups the originators of concepts; in my experience, they tend to follow trends to maximize their efforts. It is larger firms with established brands that face greater piracy threat, often done by encroaching on their *trademarks*. All that said, US customs is tasked with trademark enforcement of imports so there is little to be gained by separate design protection legislation.

Could it be that copyright in the fashion domain just isn't that important? What's fashionable is in constant flux. The high-end designer does the heavy lifting for this years "fall fashion." Even without copy-cats these designs are obsolete in a couple months, anyway. The design firm, with or without copyright protection, has the incentive to constantly turn over anyway.

I wouldn't knock the sniff test argument.

Can you i agine the can of worms this would open?

Copying fashion is an age old practice, a large proportion of clothing purchased each year would be subject, it would destroy the entire seamstress trade, it would effect people who make clothes at home,and it would be seen as a huge giveaway to an industry that is often seen as a deadweight loss.

The fact that their is a perception among the public that no garments are actually made in the US, would only compound the unpopularity of the measure, and it would be instantly perceived by a substantial chunk of a generally apolitical population as a sumptuary law, and thus has a huge class dimension.

Most people don't end up in Congress by being complete idiots, they are actually pretty smart, and the true idiots usually don't last very long. Unlike toilets and lightbulbs, ths has no moral justification that the public woud accept. IP is already under considerable public pressure anyway, so changing ancient custom is not happening.

I once asked an officer of a high-fashion shop why they don't push for design protection in the USA. I did not think he thought through his response (this was at a conference), he merely said he thought his customers could distinguish between a real and a fake designer good, and also that the label (which is copyright) matters (one reason the label is sometimes put on the outside of the designer good btw). So to an extent the fashion industry is ignorant about design protection, if this one guy is a representative data point.

Why think very hard about what you don't have any power over? A lot of very successful businessmen have this attitude.

Such a law would result in a loss of US sovereignty to the world government which favors the French who we all know are not mere part of old Europe, but anti-American....

If fashion copyrights were allowed in the US, the French would be the winners and the US companies that knock off French designs and get them made by the millions in Asian or African sweatshops would be the losers.

I can see that MR is fashion clueless on how to protect a design.

Here's a hint:

Ever wondered why there is a copyrighted Nike Swoosh or why a handbag has a stylized copyrighted Vutton symbol.

Hope you haven't given up: designers incorporate their names and copyrighted symbols in the design...so the swoosh, the Vutton symbol...designates the origin and the design. With advertising, you buy into the symbol and associate the design and the copyrighted materials as THE design.

"Here’s a hint:

Ever wondered why there is a copyrighted Nike Swoosh or why a handbag has a stylized copyrighted Vutton symbol."

Here's a hint: there aren't. Those are trademarks, not copyrights.

Very interesting read and one that could spark a debate

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