Redefining fashion: from Congress to the runway.

• Author: Balsara, Nisha

Cite as 11 J. High Tech. L. 93 (2010)

"The difference between a good designer and a real designer is to be in tune to what is there in the moment and define it before anyone else."

--Fabien Baron, Loving and Hating Marc Jacobs, N.Y. Times, Nov. 15, 2007.

1. Introduction

   Every year, notable fashion designers and fashion houses unravel beautifully-crafted creations for Hollywood starlets who are walking the red carpet for the Annual Academy Awards. (1) Millions of viewers watch the unveiling of these designs on television, most of whom do so to admire the beauty and quality of the gowns. (2) But, other viewers, like designer Allen B. Schwartz, have teams that begin sketching a gown the moment it graces the red carpet for the purpose of mass-producing replicas of these gowns for an affordable price. (3) For some consumers, purchasing a $300 replica rather than a $3,000 original is a bargain. (4) For advocates of fashion design reform, however, this bargain equates to fashion design piracy. (5)

   The permeation of fashion into every aspect of culture blurs the line distinguishing fashion design as a work of art from a vehicle for mass production. (6) For instance, in Bravo's TV Series, Project Runway, fashion designer Michael Kors criticized participant Kenley Collins for creating designs that substantially resembled the work of iconic designers. (7) Fashion designers must have full knowledge of seasonal trends and styles to appeal to consumers while also retaining originality and creativity in design creation. Maintaining this balance between original innovation and economic success in the fashion industry distinguishes an iconic designer from a copycat designer. (8)

   Such isolated instances of copying have aggregated into a controversy that has provoked much debate in the fashion industry. (9) Unlike virtually every other form of art, U.S. law has consistently denied copyright protection to fashion designs on the basis of functionality, even though society has historically viewed such designs as forms of wearable art. (10) More importantly, since 2006, representatives have repeatedly introduced fashion design legislation into Congress, yet the reform has failed to generate enough friction to become new law. (11)

   With regard to fashion design, Congress has struggled balancing two aspects of copyright law--an author's incentive to innovate with freedom of expression and accessibility to the public. (12) Advocates of a free market economy have expressed strong opposition to extending copyright protection to fashion designs, claiming that such protection will hinder competition in the industry. (13) Other opponents have expressed concern regarding whether the use of congressional time and resources in adhering to the copyright standards will prove to be beneficial for the designers. (14)

   The element linking the prior versions of fashion design reform and the current version of the Design Piracy Prohibition Act introduced into Congress is that the reforms seek to protect designers from having design pirates usurp their intellectual creativity. (15) The concern for fashion design advocates, however, is determining how the current version of the Design Piracy Prohibition Act will use copyright law to protect fashion designs to a similar extent that other countries, such as India and France, grant protection. (16)

   The issue remains whether the current version of the Design Piracy Prohibition Act will be a sufficient engine for extending copyright protection to fashion designs. Based on legislative history, the legislation will probably not withstand congressional review. Nevertheless, for fashion advocates combating the rapid growth of design piracy, they must rethink their strategy for appealing to Congress. The important elements to focus on include clarifying the language of the bill to harmonize it with international countries, the policy standpoint behind fashion as wearable art, and the harmful economic effect design piracy has on individual designers. By addressing these factors, fashion advocates may be able to persuade Congress to pass legislation in their favor--albeit fashionably late. Part II of this Note discusses the economic background of the fashion industry as it relates to the evolution of copyright law, the public policy arguments behind fashion as wearable art, the presence of modern-day fashion monopolies and the current version of the Design Piracy Prohibition Act. Part III of this Note argues for the copyright protection of fashion designs by parsing the economic arguments, focusing on public policy and addressing the strategic changes that will push fashion design reform forward.

2. History

   1. The Supply and Demand of Fashion

      Historically, the fashion industry has generated billions of dollars of revenue by maintaining the constant supply of designs for the high demand of consumers. (17) With the recent push towards extending copyright protection to fashion designs, the debate of whether design piracy is actually beneficial to the fashion industry has materialized. (18) The idea that the fashion industry has been successfully operating without copyright protection is premised on two arguments: (1) imitation drives production and (2) the costly process of litigation will disrupt the economic stability of the industry. (19)

      With an economic outlook of the fashion industry, Kal Raustiala and Christopher Sprigman introduced the term "piracy paradox" by positing that rather than hindering innovation, copying promotes it and benefits the originator. (20) The economic perspective defines clothing as a "positional good" by highlighting the close relationship between the value of the good and the perception of such value by society. (21) For instance, a study of Ugg boots illustrates that although they were a popular fashion item in 2003 and 2004, the widespread copying and distribution of these boots eroded its value to the consumer. (22) Put simply, the once popular "fashion item becomes anathema to the fashion-conscious." (23)

      Raustiala and Sprigman expanded upon clothing as a positional good by illustrating that when fashion designs are mass-produced to the public, the desirability for a high fashion consumer to purchase such a design immediately diminishes. (24) Fashion designers respond to this decreased demand by creating new innovative designs thereby stimulating production in the fashion industry. (25) Thus, design piracy not only fuels production in the fashion industry, but it also stimulates a designer's innovation. (26)

      Aside from deterring the innovative nature of the fashion industry, there is the argument that the cost and resources involving a copyright infringement lawsuit will result in foreseeable litigation delays. (27) Instead of developing new designs, a fashion designer will be "trapped in the perpetual chaos of trying to defend the copyright on existing designs." (28) As a result, the fashion industry's long-standing economic stability will suffer as the demand for designs surpasses the existing supply. (29)

      However, it is important to distinguish that this idea of stagnant innovation is in stark contrast with the promotion of innovation granted by the Copyright Clause in the Constitution. (30) The public policy argument behind the Clause is to allow individual authors to reap the benefits of their creativity. (31) Perhaps the controversy between the economic arguments against fashion design reform and the public policy arguments for copyright protection stems from the interpretation of the Copyright Clause. The issue then is whether the purpose of the Clause is to protect industries as a whole or to protect individual authors.

   2. Unraveling of Copyright Law

      The Copyright Clause of the United States Constitution empowers legislators to promote creative innovation by securing for innovators the "exclusive Right to their Respective Writings and Discoveries." (32) In the beginning, Congress merely regulated copyrights on books and maps, but later broadened the interpretation of the language to include musical compositions, photographs and motion picture films. (33) These regulations soon became codified in Title 17 of the United States Code. (34)

      In 1954, the Supreme Court interpreted the meaning of "useful article" in Mazer v. Stein35, a case regarding the use of male and female dancing figurines as the base for table lamps. (36) The Court struggled over whether artistic statuettes fall under protection when the statuette is for industrial use. (37) The Court clarified that "[copyright] protection is given only to the expression of the idea--not the idea itself." (38) With this decision, the Supreme Court gave meaning to the legislative power granted by the Constitution. (39) The Court also distinguished the function of a design from its aesthetic nature by ruling that separate elements of art embedded in manufactured items are still copyright-protected. (40)

      In 1978, Congress codified the Mazer opinion that stated copyright protection extended only to the expression of the idea, and initiated the idea of separation from utilitarian use with the Copyright Act of 1976 (the "Act"). (41) The Act essentially serves three purposes: (1) broadening the scope of protection from published works to original works that are "fixed in a tangible medium of expression" (42); (2) extending the term of copyright protection from twenty-eight years (43) to the life of the author plus seventy years (44); and (3) illustrating which forms of authorship deserve copyright protection, while overlooking fashion designs. (45)

      1. The Idea of Separates

         In the 1980s, the fashion industry became a victim of the mass production of goods in the middle market. (46) During this time, the courts identified clothing as a useful article and thus not copyrightable. (47) In an attempt to capitalize on and develop the scope of the recent passage of the Act, the task before the courts was to define what constituted...