Copyright Couture: Providing Fashion Design With Protection

Our friend and avid Clancco reader, Sara Ellis, has just published her law review note with the Tennessee Law Review (78 Tenn. L. Rev. 163),  addressing fashion piracy and how law–specifically intellectual property–can be used to protect the fashion industry and young designers.

Here’s the abstract.

In recent years, there has been much debate about the need for intellectual property protection for fashion designs. Two bills introduced before the 111th Congress purported to provide a solution for this need. The Design Piracy Prohibition Act (“DPPA”), which was introduced in the House April 3, 2009, and the Innovative Design Protection and Piracy Prevention Act (“IDPPPA”), which was introduced in the Senate on August 5, 2010 would have amended Chapter 13 of the Copyright Act to provide sui generis protection for fashion designs. While some scholars worry that bills like the DPPA and the IDPPPA would stifle creativity, many designers think that such protection would afford them more freedom to create new and innovative designs. Scholarly debate aside, piracy is a $12 billion drain on the fashion industry that “steals the very essence of enterprise” by diluting branding and making it more difficult for new designers to begin their careers.

Because current intellectual property laws do not address the unique issues involved in fashion design, pirates appropriate, or even directly replicate, others’ designs even while facing a constant stream of lawsuits. For example, the company Forever 21, one of the most notorious design thieves, has been the subject of over fifty lawsuits between 2006 and 2009 alone. Unfortunately, intellectual property law’s current status makes it very difficult for designers to find relief for their pirated designs.

This Comment discusses the piracy problems plaguing the fashion industry and offers a potential solution based on combining the best aspects of the DPPA and the IDPPPA. Part II examines design piracy—both what it is and the attempts that have been made to gain protection against it—and discusses why current jurisprudence insufficiently addresses the needs of the American fashion industry. Part III.A analyzes the need to protect fashion designs and addresses opponents’ concerns. In light of those concerns, Part III.B examines how each bill addresses design piracy and suggests potential changes that would make each bill more effective at protecting fashion designs. Finally, Part IV offers parting commentary.

You can download the entire note via SSRN here.

Tags: Copyright, fair use, fashion law, IP legislation, law review articles, trade dress, Trademark