Thursday 29 November 2012

Should copyright protect fashion?

Around a month before new US Congress starts, this blogger is wondering whether all the fuss over the Innovative Design Protection Act (IDPA) back in September was a bit of a storm in a teacup. Will the IDPA be approved this year? Although it has been approved by a Senate Committee it still needs approval of the full Senate and House of Representatives. Govtrackus' prognosis is: "Just 21% of all Senate bills reported favorably by committee in 2009–2010 were enacted." With a lame duck session before new Congress starts that approval is looking less and less likely.

The IDPA is "a bill to amend title 17, United States Code, to extend protection to fashion design, and for other purposes." The question under debate is: does fashion need and/or deserve protection?
A question which could be debated forever. On the one hand why should fashion designers be treated any differently to creators of other original artistic works? On the other, it is clear that the fashion industry benefits from knock-offs. The faster the churn of designs from luxury to high street, the faster designers need to produce new looks to fill the vacuum at the top.

Designers currently rely on a mix of trade mark and design rights to assert their rights: just this month a shoe designer, Charles Philip, filed a claim in the Central District of California in Los Angeles against The Gap. Philip argued that The Gap essentially copied his Fall/Winter 2012 loafer collection and stole his striped shoe lining, which he claims is his signature style. Unable to sue for copyright infringement, he claimed trademark infringement, trade dress infringement, unfair competition, dilution, right of publicity, and other claims. Should Philip have copyright over his shoes? Or does he not need copyright given the other raft of rights on which he can rely? 
For more on copyright in fabrics see here
As I have commented on this blog before, if English judges apply recent CJEU cases harmonising the concept of a work so that all works that are their "author's own intellectual creation" are protected, fashion designers will find it much easier to protect their works using copyright in the UK. Works that do not currently easily fall into one of the 8 works protected by the CDPA, such as shoes, perfume, make up, garments, hats etc, could be protected by copyright.

I would be interested in hearing readers' opinions: is the life-cycle of a design too short for the fashion industry to care? Or does that logic only apply to garments? Should the UK fashion industry be lobbying for application of the CJEU decisions in order to expand copyright protection? And how might this affect other industries?

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