Back to the Beginning: A Revival of a 1913 Argument for Intellectual Property Protection for Fashion Design

By Barton, Kimberly Ann | Journal of Corporation Law, Winter 2010 | Go to article overview

Back to the Beginning: A Revival of a 1913 Argument for Intellectual Property Protection for Fashion Design


Barton, Kimberly Ann, Journal of Corporation Law


I. INTRODUCTION
II. BACKGROUND
    A. Purpose Behind Intellectual Property Law
    B. Design Piracy
    C. Historical Fashion Design Protection
    D. Current Legal Protection for Fashion Design
       1. Trademark and Trade Dress
       2. Copyright
       3. Patent
    E. Protection for Other Designs Not Sufficiently Protected Under
       Federal Copyright Law
       1. Architectural Design Protection
       2. Semiconductor Chip Protection
       3. Vessel Hull Design Protection
    F. Proposed Increased Protection for Fashion Design: Past and
       Present
        1. The Trend in Attempted Fashion Design Protection Legislation
        2. House Bill 5055
        3. House Bill 2033
        4. Senate Bill 1957
        5. House Bill 2196
III. ANALYSIS
     A. Comparison of the Most Recently Proposed Legislation
     B. Proponents of the Most Recently Proposed Legislation

        1. Fashion Industry Supporters: Council of Fashion Designers
           of America
        2. Academic Proponents
        3. Congressional Supporters
        4. The U.S. Copyright Office
     C. Opponents of the Most Recently Proposed Legislation
        1. Fashion Industry Opponents: American Apparel and Footwear
           Association and the California Fashion Association
        2. Academic Opponents
     D. Comparison with the Architectural Works Copyright Protection
        Act
IV. RECOMMENDATION

     A. The Fashion Industry Must Form a True Coalition
     B. Drafters Should Learn from Past Legislation to Ensure a
        Swift Success
     C. International Pressure
V. CONCLUSION

I. INTRODUCTION

On May 12, 1913, the New York Times published a letter from Vivian Burnett, the editor of the Lace and Embroidery Review, calling for all parties affected by fashion design piracy to join together to achieve increased intellectual property design protection. (1) She deemed piracy "the greatest deterrent to creative work in this country, especially in the field of fashion," and recognized the need to amass all interested parties to create legislation that addressed as many concerns as possible. (2) Finally, Ms. Burnett appealed to the industry through the importance of the international effect of design piracy. (3) Disappointingly, nearly a century has passed and her cause remains unsettled.

Although times have changed, Ms. Burnett's simple components still weave the strongest rope for securing design piracy protection through an industry-drafted congressional statute. This Note examines the history of intellectual property protection and its application to fashion design, explains and evaluates recently proposed legislation to provide copyright protection to fashion design, and compares the recently proposed and recently defeated legislation with other pieces of legislation that have successfully brought intellectual property protection to similar industries. Ultimately, this Note argues that copyright protection is necessary for fashion design and proposes that the industry unite to support a cohesive bill, adjusted for flaws in past bills, and exploit the international pressure behind fashion design anti-piracy legislation.

II. BACKGROUND

American fashion is a $350 billion industry, and more than $12 billion worth of fashion designs are pirated and sold as counterfeits. (4) Even more pirated designs are sold under a different brand name. (5) For other artistic works, such as music, copying a product and selling it under a different brand name is considered counterfeiting, plagiarism, theft, or piracy, and has legal consequences. (6) Yet companies that engage in pirating fashion designs and turning them into tangible garments go unpunished. (7)

This Part of the Note explains the purpose behind intellectual property law and further details the concept of design piracy. It sets forth the current legal protection available to companies in the fashion industry in the form of trademarks, copyrights, and patents, and explains what types of designs are subject to each kind of protection. …

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