Free Fashion

By Marshall, Ashley M. | Marquette Intellectual Property Law Review, Winter 2013 | Go to article overview

Free Fashion


Marshall, Ashley M., Marquette Intellectual Property Law Review


   INTRODUCTION    PART I: CURRENT STATE OF FASHION DESIGN PROTECTION       A. Trademarks       B. Design Patents       C. Copyrights    PART II: HISTORY OF FASHION DESIGN PROTECTION LEGISLATION       A. Res Ipsa Loquitur       B. Design Piracy Prohibition Act    PART III: THE INNOVATIVE DESIGN PROTECTION AND PIRACY PROHIBITION       ACT    A. Scope of the Innovative Design Protection and Piracy Prohibition       Act    PART IV: EFFECTS OF THE ID3PA       A. Cultural Effects of the Innovative Design Protection and          Piracy Prohibition Act       B. Effects of the Innovative Design Protection and Piracy          Prohibition Act on Innovation and Creative Minds       C. Economic Effects of the Innovative Design Protection and          Piracy Prohibition Act    D. Re-introduction of the Innovative Design Protection and       Piracy Prohibition Act as the Innovative Design Protection Act    PART V: RESOLUTION: IS THE INNOVATIVE DESIGN PROTECTION AND PIRACY    PROHIBITION ACT A STEP IN THE CORRECT DIRECTION       A. Critics of the Innovative Design Protection and Piracy          Prohibition Act          1. Piracy Paradox       B. Supporters of the Innovative Design Protection and Piracy          Prohibition Act       C. What the Courts Have to Say About Fashion Design          Protection       D. Third Time's a Charm: The Great Compromise          1. Issue One: Knock-Offs          2. Issue Two: Department Stores          3. Issue Three: If It's Not Broke, Don't Fix it    CONCLUSION 

"Fashion is a form of imitation that unites social classes and enables social equalization. The elite initiate a fashion and the mass imitate in efforts to obliterate external distinctions of class." (1)

Georg Simmel

Introduction

Our current vision of fashion is viewed as a shared art form that may be enjoyed by all social classes. Fashion encourages a melting pot of collaboration from people that are influenced by creativity. At its core, fashion is innovative and it inspires people to foster that same self-expressive conduit.

Traditionally, fashion was a privilege and greatly restricted from certain classes. Indeed, Georg Simmel has proposed that in an open class society, the high class seeks to distinguish itself by adorning distinctive forms of dress, and in turn, the middle class adopts this form of dress to identify with the superior class's status. (2) Currently, access to fashion is wide-reaching. However, recently proposed intellectual property legislation threatens access to fashion, and, if enacted, will create visible class distinctions that mimic those of our historical society.

Whether to extend copyright protection to fashion is an issue that has sparked much discussion from supporters and critics alike. The current state of fashion design protection is minimal. Generally, fashion design and accessories are not protected under copyright law. Nevertheless, many designers have been able to successfully and creatively design fashion. Designers are occasionally able to secure protection under the current trademark law and, in some very rare instances, under design patents. Many fashion designers have expressed extreme dissatisfaction with the lack of fashion design protection. Recently proposed legislation has surfaced in efforts to address designers' concerns. (3)

The Innovative Design Protection and Piracy Prevention Act (4) ("ID3PA"] will amend Title 17 of the United States Code and extend copyright-like protection to fashion design. (5) The ID3PA will provide designers with a three-year term of protection for the garment itself and the unique design elements of the garment. (6) This would allow designers to own the overall appearance of the garment (7) if the designs are unique and distinguishable from prior designs. The ID3PA will not require registration, (8) and such protection would apply only to original designs created after the enactment of the bill. Any previously created designs will fall into the public domain. …

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