With New York's Fashion Week upon us, the time is appropriate to examine the intellectual property protections available to some of the most prominent artists in popular culture: fashion designers. No one would seriously question the great artistic talents of many designers. Their imaginative, inventive, and daring creations and their lasting legacies have pushed artistic limits of the fashion world for decades. And yet, despite being undoubtedly artists in their craft, fashion designers do not enjoy the same protection in their work under current U.S. intellectual property laws that their artistic peers enjoy in the worlds of visual arts, film, music and dance.
Fashion designs do not fit neatly into a traditional
intellectual property realm. Copyrights generally are not granted
to apparel because articles of clothing are considered functional
"useful articles," as opposed to non-utilitarian works of
art. Design patents are intended to protect ornamental designs, but
clothing rarely meets the demanding requirements of
"novelty" and "non-obviousness" for
patentability. Trademark law, while useful to protect brand names
and logos, generally does not protect the clothing itself, and the
Supreme Court has refused to extend trade dress protection to
apparel designs.
This lack of copyright protection for fashion designers has in
part created the phenomenon of "red carpet copycats":
companies that hurriedly create and sell copies of the glamorous or
bold garments worn by celebrities at red-carpet events. Knockoff
goods are a huge part of the fashion industry, and have become
common practice. The instantaneous nature of the internet and
mobile camera phones has made fashion designs even more susceptible
to immediate widespread display and copying.
Over the decades, Congress has gradually expanded the subject
scope and duration (currently life plus 70 years) of federal
copyright protection. However, Congress has not yet elected to
include fashion products in the categories of works entitled to
copyright protection. On December 1, 2010, the Senate Judiciary
Committee passed a bill called the Innovative Design Protection and
Piracy Prevention Act (IDPPPA), aimed at giving copyright
protection to clothing designs. The bill was an updated version of
the 2006 Design Piracy Prohibition Act, which had stalled in
Congress. Unfortunately for designers, and despite strong support
from groups like the Council of Fashion Designers of America and
the American Apparel and Footwear Association, the IDPPPA bill is
currently still pending in Congress. Further, the scope of its
protection may not be as wide and strong as many fashion designers
would like. Observers note that the bill is very narrow; it
protects only truly new designs and the proposed
"substantially identical" standard, similar to the
definition of a trademark counterfeit, may potentially be
circumvented by slight modifications in order to avoid
infringement.
Given the limited intellectual property protections available to
the fashion world, fashion designers have often attempted to expand
the protections they do enjoy. The most recent and prominent
example of this is being played out in the case of Christian
Louboutin S.A. vs. Yves Saint Laurent America Holding, Inc.,
currently pending in the U.S. Court of Appeals for the Second
Circuit in New York City.
In this case, Louboutin has alleged that some of YSL's all-red
shoes infringe Louboutin's trademark in the U.S. for his
all-red lacquered "signature soles." What makes the
Louboutin case particularly interesting is the artistic
hook to the trademark. The district court's opinion denied
Louboutin a preliminary injunction and seriously doubted whether a
color should be trademarked in the fashion industry. The district
court explained that color has a rather unique aesthetic
functionality to the world of fashion, in that fashion designers
use particular colors on their products not as a source indicator,
but as an enhancing or attractive quality of the product. Comparing
Louboutin's exclusive use of the color red on shoe soles to
Picasso garnering a monopoly on the use of the color blue based on
his "trademark" blue period, the district court concluded
that the industry needs to use colors on outsoles without
restriction to permit designers to make artistic choices in
creating their designs. Relevant to the district court's
opinion were Louboutin's apparent past admissions that he chose
the red sole not purely as a source identifier, but also because of
its eye-catching and seductive qualities.
The Louboutin case highlights the odd reality of
intellectual property law and the pressure on fashion designers to
frame their aesthetic or artistic choices, for which they are known
and celebrated, merely as brand identifiers in order to secure
intellectual property protection in their products. The ultimate
outcome of the case will undoubtedly have great effect on both the
fashion and legal worlds, and fashion designers are quite tuned in.
For example, Louboutin was accompanied in the Second Circuit
courtroom by Diane Von Furstenberg, renowned designer and president
of the Council of Fashion Designers of America, a major advocate
for stronger laws against copyright infringement in the fashion
world.
If nothing else, the Louboutin case holds in balance the
legal protection that they may either gain or lose as a result. It
also underscores a need for more defined laws in fashion branding
and design in the legislative arena, as opposed to the courts.
Given the case's national prominence and the various recent
congressional hearings regarding the IDPPA, that legislative change
may soon be arriving.
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