Copyrighting the 'useful art' of couture: expanding intellectual property protection for fashion designs.

• Author: Miller, M.C.

"Fashion is not something that exists in dresses only. Fashion is in the sky, in the street; fashion has to do with ideas, the way we live, what is happening."

--Coco Chanel

Table of Contents INTRODUCTION I. DEFINING FASHION: A UTILITARIAN ART FORM II. THE ART-UTILITY DICHOTOMY IN INTELLECTUAL PROPERTY LAW A. Patent Protection B. Copyright Protection C. Fashion: An Unprotected Object of Art and Utility III. A HISTORICAL PERSPECTIVE THAT DISPELS THIS DICHOTOMY A. The Statute of Anne B. The Constitution of the United States IV. EXTENDING COPYRIGHT PROTECTION TO FASHION DESIGNS A. The Architectural Design Amendment of 1990 B. Dispelling Miscellaneous Arguments in Opposition to Extending Copyright Protection to Fashion Designs V. THE CHANGING LANDSCAPE OF FASHION DESIGN: FURTHER NECESSITATING THE NEED FOR FUTURE PROTECTION CONCLUSION INTRODUCTION

To those unfamiliar with the fashion industry, the world of style--although a frivolous land of superfluous trends and ridiculous price tags--is a place where runway models pose, teen girls spend, and all participants coexist in superficial bliss. To fashion insiders, however, the elegant fashion shows and mall-rat-madness serve only to mask a long-brewing truth: the fashion industry is at war.

On one side of the battleground stand those who create--a group composed primarily of designers and creative directors working for couture fashion houses that service celebrities and the upper echelon of society. (1) For these individuals, the creative design process is a labor of both love and a commitment of time. On average, it takes approximately two years for a designer or creative team to turn a visionary concept into a physical object ready for wear. (2) The first step in this creative process requires designers to predict what trends will be popular nearly two years into the future when the final garment will be produced. (3) In addition to following color and textile trends, designers draw further inspiration from studying street fashion, visiting art museums, traveling to other nations, keeping track of other design industries, and, most importantly, using their imaginations. (4) Once a designer collects enough inspiration to begin crafting a new design, he uses his knowledge of garment construction and unique sense of creativity to create a two-dimensional sketch dictating the physical creation of the design. (5) After he is satisfied with this blueprint, the designer searches for fabrics and materials that will not only enhance the aesthetic appearance of the design but also will physically support the actual creation of the garment. (6) Once the designer selects the appropriate fabric, he uses his sewing skills and artistic knowledge to create a mock version of the garment, which is later inspected and tailored by the designer and his creative team. (7) Finally, after nearly two years of innovative effort and technical labor, the designer approves the article of clothing for public or private manufacture and begins seeking new inspiration to begin the lengthy design process all over again. (8)

Opposing these couture designers on the fashion industry battleground stand those who copy--mass-producing discount retailers who target fashion-forward twentysomethings on a budget. (9) Instead of creating unique designs and signature styles like their imaginative components, many of these discount retailers instead focus their efforts on providing their customers with the chance to purchase designer "knockoffs"--articles of clothing and accessories that are designed to look like high-end fashion pieces from the couture runway but are sold at a dramatically more affordable price. (10) Unlike the attention to innovation and careful production process valued by the designers described above, these fashion offenders are primarily concerned with strict replication and quick construction. (11) As a result, originality and creativity are often conspicuously missing from the discount retail production process. (12) Take, for example, Forever 21, an American-based mass retail chain that sells trendy clothing and accessories at an affordable price. (13) Instead of employing fashion designers, Forever 21 hires a team of "design merchants" who purchase inventory from a wide variety of suppliers. (14) These suppliers also take a similarly unimaginative approach to the clothing they produce. (15) The owner of Simonia Fashion, one of the leading suppliers of Forever 21, described her "design method" simply, explaining, "If I see something on Style.com, all I have to do is e-mail the picture to my factory and say, I want something similar, or a silhouette made just like this.'" (16) Another discount retail supplier, Faviana, routinely sends representatives to take photographs of the red carpet trends at runway shows and celebrity events and immediately submits these images to Chinese factories with the capacity to quickly mass-produce less expensive copies. (17)

As a result of this production process that values designer replication over original creativity, Forever 21 has become known for supplying low-end alternatives to popular designs from the runway. (18) But these designs do much more than draw general inspiration from the overall form of high-end pieces; they are true copies, purposefully indistinguishable from the originals they emulate. (19) Thanks to the striking similarities between many of Forever 21's designs and the pieces on which they are so obviously based, the retail chain has become involved in much litigation concerning its designs. (20) In an attempt to put an end to the chain's unapologetic copying, renowned designers like Diane von Furstenberg, (21) Betsy Johnson, (22) and Anna Sui (23) have filed suits against Forever 21, claiming that the store violated their intellectual property rights by copying their work. (24) Unfortunately for these designers, their fashion designs--the creative works to which they devoted time, labor, and imagination--receive little to no protection from America's modern intellectual property regime. As it stands today, no meaningful legal recourse exists to put an end to Forever 21's unabashed behavior. (25)

Whereas previous scholarship concerning this issue has focused primarily on the reasons fashion designs do or not deserve various types of intellectual property protection, this Note will attack the intellectual property framework as a whole in order to illuminate the reasons why fashion designs can and should receive intellectual property protection, namely copyright protection. More specifically, this Note will argue that the current distinction between different types of intellectual property protection should not present problems for fashion designs. Part I will explore the unique nature of fashion designs by considering the ways in which clothing pieces can be classified as fundamentally different types of objects to different people and in different situations. Part II will illuminate the ways in which the context-specific nature of fashion designs make it difficult for such designs to receive protection from America's current intellectual property system. Part III will look to the historical underpinnings of American intellectual property law to argue that the unique nature of fashion designs should not serve as a strict bar to receiving protection. Part IV will examine the Copyright Act of 1976 along with the Architectural Design Amendment of 1990 to demonstrate why and how copyright protection could easily be extended to include fashion designs. Finally, Part V will consider the ways in which the changing landscapes of world custom and technology now require fashion designs to receive intellectual property protection in order for the American fashion industry to continue to develop creatively and economically.

1. DEFINING FASHION: A UTILITARIAN ART FORM

   People typically stride through life clothed. Recent proclamations of equal protection and civil liberties aside, (26) clothes are an unavoidable part of everyone's life today. (27) However, clothes--"fashion"--mean very different things to different people, as a result of both situational factors and personal characteristics. (28)

   To begin, clothes can mean different things or be classified as different types of objects depending on context. (29) On the one hand, imagine a farmer dressed in a flannel shirt, denim overalls, and work boots while preparing his land for the fall harvest. In this situation, the farmer's clothing serves a primarily utilitarian function. (30) The flannel keeps his body warm in the chilly morning hours, the thick denim of the overalls is both comfortable and protective, and the sturdy work boots allow the farmer to spend a long day easily traversing muddy terrain. His clothes are nothing more than physical articles designed to serve a purpose; they help him complete his daily tasks in a safe and efficient manner. On the other hand, imagine an A-list actress wearing a famous designer's original creation while attending the annual Metropolitan Ball in New York City. The designs for this event are daring and strive to push the envelope of the fashion industry. (31) As bizarre as it may seem, it is not outside the realm of possibility that a designer would craft a creation that resembles the farmer's attire described above. In this setting, however, the clothing serves little to no utilitarian function. (32) On the steps of the Metropolitan Museum of Art, the actress is merely a dress form or canvas, and the clothing stands alone--a piece of high Art on living display. (33)

   In addition, personal characteristics of the wearer can affect the meaning or classification of a given article of clothing. (34) Take, for example, several students selecting an outfit for the first day of school. One student may intentionally avoid selecting an outfit for school and will instead simply grab the first thing she finds on the floor because she is not...