28 Sep (In)Sincere Flattery? A Legal Sketch of Fashion Design Piracy
This month, eyes will be turned towards New York, London, Milan, and Paris, as the time of year known as “fashion month” takes place in the leading fashion capitals of the world. The looks that stalk down the runways to the delight of fashion editors, retail buyers, and fashion influencers usher in the trends that will be dominating city streets and social media feeds in the next spring months. Away from the front lines of the runway shows, certain fashion industry players, both big and small, are also, with baited breath, awaiting these designs—in order to knock off and sell these looks, sometimes even before the original designers can get theirs available to the general public. What’s even more shocking? This is completely legal.
This piracy is permitted because copyright law, the legal roadblock that would usually prevent this type of copying in areas like art and music, does not extend to fashion designs. A copyright is a bundle of exclusive rights given to a literary, dramatic, musical, or otherwise creative work that allows the owner to exploit that work. Copyright law does not cover fashion due to the useful article rule, which says that copyright protection cannot be given to articles that are considered “useful.”The law defines a useful article as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” Under the law, clothing is seen as a useful article—its purpose is to cover the body and serve as protection from the climate. Any use of the clothing that is necessary to serve these purposes is useful, and therefore not copyrightable.
In Kieselstein-Cord v. Accessories by Pearl, Inc., a federal appeals court provided a heightened analysis of the useful article rule for wearable items. In that case, the court determined that while clothing alone is utilitarian, if the clothing contains a graphic, pictorial, or sculptural feature that can be separated from the utilitarian aspect of the clothing (either a physical or conceptual separation), that feature is copyrightable. Therefore, under the current legal landscape, a court would most likely see the artistic elements of a striped pencil skirt or an ikat wrap dress as being conceptually separable from the actual skirt or dress—they can exist without those prints. However, a skirt done in a unique cut or a dress draped in an innovative way will most likely not be viewed as separable from the clothing items themselves—the utilitarian nature of the pieces are needed for the creative aspects to exist.
Designers are not completely without recourse, however, to protect their intellectual property. Thanks to the logomania of the early 2000s, to police their brands, luxury fashion houses that have become synonymous with their logos consistently take advantage of the legal protection provided by trademark law. Companies like Diane von Furstenberg, Phillip Lim, Feral Childe, and Trovata have all duked it out against Forever 21 in the legal arena over unauthorized uses of their prints, and luxury houses Saint Laurent Paris and Versace have been accused of fabric patterns. Designers have also used trade dress and design patent protection to enforce their intellectual property rights. While these methods are valuable, they stop short of addressing the problem of knockoffs. Also, legal defensive measures require a large amount of capital, which most designers do not have.
Due to these legal shortcomings, small and independent designers often find themselves being ripped off by larger or more well-known apparel companies, without ever receiving a morsel of income or credit for their work. While fast fashion retailers are the serial offenders, luxury fashion houses like Chanel have also been known to copy designs from lesser-known designers and pass them off as their originals. Furthermore, with the rise of the Internet, access to these designs is just a click away, as shows are often streamed live and brand websites display an entire season’s garments. The fast fashion beast has also exacerbated the problem, since retailers are pressured to cycle out their product offering often.
In recent years, there have been two major occurrences in the stride for increased copyright protection for fashion designs. The first was in 2012, when the Innovative Design Protection Act (IDPA) was introduced into the Senate by New York Senator Charles Schumer. The IDPA proposed to amend the Copyright Act, giving a three-year term of copyright protection to original and novel fashion designs that are unique, non-trivial, and non-utilitarian when compared to previous designs. A design would be deemed to have infringed on a protected work if it was “substantially identical” to the original. The first iteration of the bill introduced in 2007 drew both praise and criticism, the latter coming from groups like the American Apparel and Footwear Association. The critics disliked the bill’s proposed registration requirement, possible liability for retailers or customers who resold pirated designs, and potential liability for home sewers. The 2012 bill was reformulated to calm these fears, but Congress has not revisited the matter since.
The second most recent push for fashion and copyright protection was recently seen in Star Athletica, L.L.C. v. Varsity Brands, Inc. In that case, a federal appeals court ruled that certain aesthetic features of cheerleading uniforms, namely chevrons, stripes, zigzags, and color-blocks, were “conceptually separable” from a uniform’s functions, which were to cover cheerleaders’ bodies, keep moisture at bay, and withstand physical movements. A lower court ruling had said that without those design elements, cheerleading uniforms would cease to be cheerleading uniforms, and thus those elements were inseparable. In May of this year, the U.S. Supreme Court agreed to review the case in its next term, and will presumably create a nationwide test as to when aesthetic features on a useful article can be copyrighted.
It should be noted that in the world of geographic fashion players, lack of protection for fashion is unique to the United States. France, the United Kingdom, and Italy all have variations of copyright protection for designs. Due to this, popular chains like Zara and Topshop, who are very heavily influenced by runway fashion, must be more careful in how they translate their inspirations than a U.S.-based retailer would.
As of now, the future of fashion design protection is at an important crossroads. Now, due to the pending SCOTUS decision, only time will tell how or if the law will find a solution for fashion copyright protection, and in effect, the ubiquity of knockoffs. Until then, in the words of Tim Gunn, designers and their lawyers will have to be creative in finding other ways to “make it work.”