Fashion Patents, Trademarks, and Copyrights

Last Autumn, when I took an Arts Law class, I was rather surprised by the wide gaps left by intellectual property rights. Prior to many provisions, copyright only covered literary, musicla, dramatic and choreographed works, graphic and sculptural works, including audio and motion picture works.

Wow! Does anyone else see how many artistic realms aren't represented in this? (Which, for the most part, is still the general list of protected works.) Luckily,the government seems to move rather quickly to adapt laws to match current trends in society, so we were bound to see laws popping up to protect piracy, the internet, and other forms of communication that make up intellectual property laws.

The Fashion-y Blog recently posted about designer knock-off, to which I replied with my typical hybrid of legal advice and devil's advocacy. Because the truth is, that fashion designers have little to protect their intellectual interests-- they cannot copyright a garment of clothing (although they could probably copyright the drawings), and there is little left for them to patent, unless they can guarantee they are the first to use a particular element (which is a problem corsetiere Alexis of Electra Designs has recently faced).

There is news that this is going to change, however. From a thread I found, quoting the Patent, Trademark, & Copyright Journal (August 10, 2007):

Sen. Charles E. Schumer (D-N.Y.), joined by Sen. Orrin G. Hatch (R-Utah) and seven co-sponsors, introduced legislation Aug. 2 that would amend Chapter 13 of the Copyright Act to extend design protection to fashion designs....
Under the Goodlatte bill, creators and designers of clothing, "including undergarments, outerwear, gloves, footwear, and headgear," as well as handbags, purses, tote bags, belts, and eyeglass frames, would receive protection for three years for their designs....Additionally, H.R. 2033 would create new subsections under Chapter 13 that would extend liability for infringement to those who copy from a design or from an image of a design. The bill would also create a new section that establishes secondary liability to all designs covered under Chapter 13. To receive protection under the bill, a design would have to be registered within three months "after the date on which the design is first made public."
Additionally, under H.R. 2033, damages for infringement would be set at $250,000 or $1 a copy. Proponents of an earlier version of the fashion design bill testifying at a House Subcommittee on Courts, the Internet, and Intellectual Property hearing in July 2006 said that new technologies, including the Internet, have made it significantly easier and less costly for manufacturers to bring knockoffs to the market shortly after the original design first debuts on the runway (72 PTCJ 360, 8/4/06)...."The goal of S. 1957," Hatch explained, "is to ensure that those who spend their time and money developing new and innovative fashion designs are able to secure and enforce adequate copyright protections for their hard work."

The Source, possibly a lovely copyright ripoff in itself, along with a few more links about the bill.


I encourage you to read through the reader's responses, as there are many points made by photographers, models, and fashion designers, who bring up valid points about the implications of making such a bill. On one hand, it is good to see protection of designers who create couture/haute couture clothing, and ensuring that what is meant to be one-of-a-kind will truly stay that way. On the other hand, there are implications for the fashion photography world, such as having to secure property rights to photograph the items, or facing infringement suits. The process of gaining a copyright/trademark/patent is not a cheap or quick process, either, which means that many small designers may find their work unavailable for protection (to some degree). Will such protection stifle the fashion and garment industry? In an industry where borrowing focal pieces creates an aesthetic for the season, are designers going to be faced with paying another designer to use that element, and create the new trends? The whole process may create some interesting problems and solutions to an art form that relies on continual change and idea-exchanges.