Ashlee Froese is a branding lawyer and trade-mark agent at Keyser Mason Ball LLP. You can follow her on Twitter @brandfashionlaw or via her blog at www.canadafashionlaw.com.
In June 2011, the Council of Fashion Designers of America (“CFDA”) hosted its annual Fashion Awards – the fashion world’s equivalent to the Oscars®. Yet the biggest award granted to the industry came in December 2010 when the Senate Judiciary Committee unanimously passed the Innovative Design Protection and Piracy Prevention Act (the “IDPPPA”), which is the US fashion industry’s latest attempt to secure intellectual property protection for fashion designs. The IDPPPA is the successor to the Design Piracy Prohibition Act.
The IDPPPA reflects its predecessor in that it is an amendment to the current US Copyright Act and provides short term protection (3 years) for fashion designs. Moreover, the threshold for protection remains somewhat high in that it requires novelty and originality. A point of differentiation is that the IDPPPA no longer requires registration in order to garner protection.
“Fashion design”, under the IDPPPA, is defined as:
the appearance as a whole of an article of apparel, including its ornamentation, and includes original elements of the article of apparel or the original arrangement or placement of original or non-original elements as incorporated in the overall appearance of the article of apparel that are the result of a designer’s own creative endeavour, and provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.
The test for infringement of a qualifying fashion design is “substantially identical”. However, the IPPPDA does contemplate where the overlap in design features is a “result of independent creation”.
In addition to the endorsement by the Senate, the IDPPPA is also supported by various segments within the fashion industry, such as the CFDA and also the American Apparel and Footwear Association (“the AAFA”). It is significant that the IPPPDA is backed by the AAFA, as the organization did not support the prior attempt at legislative change.
Interestingly, at the CFDA Fashion Awards, Diane von Furstenburg, renowned fashion designer and president of the CFDA, on reflection of the IPPPDA’s success simply stated: “I don’t know that fashion is art. It’s design. But it has value and we have to protect it. It’s intellectual property.” This statement encapsulates the crux of the debate on whether fashion designs warrant intellectual property protection. Do you believe that fashion is a function of utility or a piece of art? Whereas a pair of standard jeans may not be especially note-worthy, a one-of-a-kind haute couture evening gown is a different creature.
If you look at some countries that very clearly have a thriving, profitable and noteworthy fashion industry, you will note that those intellectual property laws specifically protect fashion articles. France, for example, has a well-established legislative history (since 1793) of protecting fashion designs through copyright legislation. It is logical that fashion industries will thrive in jurisdictions where intellectual property laws explicitly protect the fashion industry.
As technology advances, the necessity of garnering protection for fashion designs increases. There are known instances where infringers attend fashion shows, digitally record three-dimensional images of the fashion designs from the runway and instantly e-mail those images to “knock-off” manufacturing sites, all before the fashion show has ended. Often times, the high street store is able to produce and market these inspired knock-offs much quicker than the haute couture designers.
There is the counterargument that the haute couture clientele and the high street shopper are separate and distinct consumers that rarely intersect in the marketplace. Thus, the fashion house does not suffer from lost revenue due to fashion design piracy. In fact, its brand is promulgated to a wider market thanks to fashion design piracy. In essence, mainstreaming unique fashion designs injects a revenue stream into the fashion industry at all levels.
Some even claim that fashion design piracy is beneficial to the creativity of the fashion industry. As the unique fashion design disseminates throughout various income brackets of fashion consumers, the fashion design is “mainstreamed” and the uniqueness of the design diminishes. This creative exhaustion leads to an impetus to further creativity and so a new fashion trend is created. Under this rationale, fashion design piracy constantly pushes the creative envelope.
Ultimately, this line of reasoning negates the fundamental purpose of intellectual property law, namely to encourage development and creativity through protection of those ideas and inventions. What impetus is there to create, knowing that the creations are free for all to benefit from? But, as with anything, there needs to be limits and a system of checks and balances in granting certain companies a monopoly through intellectual property protection.