Academic journal article William and Mary Law Review

Copyrighting the "Useful Art" of Couture: Expanding Intellectual Property Protection for Fashion Designs

Academic journal article William and Mary Law Review

Copyrighting the "Useful Art" of Couture: Expanding Intellectual Property Protection for Fashion Designs

Article excerpt

"Fashion is not something that exists in dresses only. Fashion is in the sky, in the street; fashion has to do with ideas, the way we live, what is happening."

--Coco Chanel

Table of Contents

INTRODUCTION
I.  DEFINING FASHION: A UTILITARIAN ART FORM
II.  THE ART-UTILITY DICHOTOMY IN INTELLECTUAL
     PROPERTY LAW
     A. Patent Protection
     B. Copyright Protection
     C. Fashion: An Unprotected Object of Art and Utility
III. A HISTORICAL PERSPECTIVE THAT DISPELS THIS
     DICHOTOMY
     A. The Statute of Anne
     B. The Constitution of the United States
IV.  EXTENDING COPYRIGHT PROTECTION TO
     FASHION DESIGNS
     A. The Architectural Design Amendment of 1990
     B. Dispelling Miscellaneous Arguments in Opposition to
        Extending Copyright Protection to Fashion Designs
V.  THE CHANGING LANDSCAPE OF FASHION DESIGN:
FURTHER NECESSITATING THE NEED FOR FUTURE
PROTECTION
CONCLUSION

INTRODUCTION

To those unfamiliar with the fashion industry, the world of style--although a frivolous land of superfluous trends and ridiculous price tags--is a place where runway models pose, teen girls spend, and all participants coexist in superficial bliss. To fashion insiders, however, the elegant fashion shows and mall-rat-madness serve only to mask a long-brewing truth: the fashion industry is at war.

On one side of the battleground stand those who create--a group composed primarily of designers and creative directors working for couture fashion houses that service celebrities and the upper echelon of society. (1) For these individuals, the creative design process is a labor of both love and a commitment of time. On average, it takes approximately two years for a designer or creative team to turn a visionary concept into a physical object ready for wear. (2) The first step in this creative process requires designers to predict what trends will be popular nearly two years into the future when the final garment will be produced. (3) In addition to following color and textile trends, designers draw further inspiration from studying street fashion, visiting art museums, traveling to other nations, keeping track of other design industries, and, most importantly, using their imaginations. (4) Once a designer collects enough inspiration to begin crafting a new design, he uses his knowledge of garment construction and unique sense of creativity to create a two-dimensional sketch dictating the physical creation of the design. (5) After he is satisfied with this blueprint, the designer searches for fabrics and materials that will not only enhance the aesthetic appearance of the design but also will physically support the actual creation of the garment. (6) Once the designer selects the appropriate fabric, he uses his sewing skills and artistic knowledge to create a mock version of the garment, which is later inspected and tailored by the designer and his creative team. (7) Finally, after nearly two years of innovative effort and technical labor, the designer approves the article of clothing for public or private manufacture and begins seeking new inspiration to begin the lengthy design process all over again. (8)

Opposing these couture designers on the fashion industry battleground stand those who copy--mass-producing discount retailers who target fashion-forward twentysomethings on a budget. (9) Instead of creating unique designs and signature styles like their imaginative components, many of these discount retailers instead focus their efforts on providing their customers with the chance to purchase designer "knockoffs"--articles of clothing and accessories that are designed to look like high-end fashion pieces from the couture runway but are sold at a dramatically more affordable price. (10) Unlike the attention to innovation and careful production process valued by the designers described above, these fashion offenders are primarily concerned with strict replication and quick construction. …

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