Mencken, Jennifer. A Design for the Copyright of Fashion. Diss. Boston College of Law 1997. Online. Available: (http://www.bc.edu/bc_org/avp/law/st_org/iptf/articles/content/1997121201.html).
This article discusses the historical reasons that there is no copyright for fashion designs. It explains clothing in terms of "useful articles without any copyrightable elements", while also discussing the possibility of a fashion monopoly. Mencken discusses how fashion is protected; through trademarks and sometimes common law, as well as fabric copyright protection. However, after setting up these historical views on the subject, Mencken negates many. She claims there is a "need for revision" of stances on fashion copyrightablity, suggesting the Polakovic Model. The economic effects of fashion copyright, or a lack thereof, are outlined and discussed. Finally, Mencken declares that the public would not be hurt by copyrightable fashion, only the pirate.
This is an extremely in-depth look at the past and present views on fashion copyrightability. Mencken's text complicates my own thesis in many ways. She discusses the subject in terms of Europe, where "designers understand that there is a certain level of inspiration and similar themes in each season, and have not been suing each other rampantly over infringement." Because of this article, I realize that I need to do more research into the EU before making assumptions as to what effects fashion copyright law will have on the United States.
“Copyright vs. Trademark vs. Patent.” Law Mart. 2006. Lawmart.com, Inc. 25 Nov. 2006.
This article discusses copyright, trademark and patent, noting the similarities and differences of these different types of intellectual property. There is a special section about copyright vs. trademark which outlines the uses and limitations of each. As we have discussed in class, copyright gives legal rights to the owner of an original work. Trademark protects a phrase, symbol, etc. which identifies the source of the goods trademarked.
While most of my paper will be about fashion copyright, it is important for me to include the fact that designers already have trademark protection. In terms of fashion, I believe that the former is a bad idea, but the latter is absolutely necessary. This article clearly states the differences of the two and will help me make this distinction clear to my readers.
Scafidi, Susan. "Welcome Wall Street Journal Readers!" [Weblog entry]. Counterfeit Chic. 11 Sept 2006. (http://www.counterfeitchic.com/2006/09/welcome_wall_street_journal_re.php). 25 Nov 2006.
This is the reaction of Susan Scafidi, author of the blog Counterfeit Chic, to the Wall Street Journal article, "Can Fashion be Copyrighted?" Scafidi, who was quoted in the article, uses this blog entry mostly to summarize the Wall Street Journal's article as well as alert readers of its presence. However, she also adds some of her own thoughts and clarifications. She is quoted discussing the differences between clothing historically and clothing today, stating that it was previously a craft, but now an art. in this blog entry, however, she makes the point that has always held some meaning or clues about its wearer, be it class, occupation, or other detail.
The blog entry also has a reader's response to the Wall Street Journal article as well as Susan's own thoughts.The reader argues against much of what was said about craft vs. art, insisting instead that most art is borrowed. She cites Andy Warhol and Roy Lichtenstein as examples. While I may not quote this reader, as I know nothing of her background, she makes a good argument which provided me with more ideas and points to consider. Scafidi's response to the reader is also interesting. This blog will be helpful to me both in a clarification of Scafidi's ideas as well as the arguments in the comments on which I can base more research.
United States. Cong. House of Representatives. 109th Congress, 1st Session. Stop Counterfeiting in Manufactured Goods Act [introduced in the U.S. House of Representatives; 4 January 2006].
This bill states that Congress is losing tax dollars, jobs, and up to two billion dollars annually due to counterfeited goods. It proposes that all possibly counterfeited goods be destroyed, and that anyone found guilty of profiting from counterfeited goods must immediately turn all proceeds to the government. It discusses trademarks and states that it is illegal to put such marks on counterfeited goods, even if the person doing so is unaware of the mark's registration.
This is important information in proving that trademark is necessary for fashion copyright, and that motions have been passed protecting designers' rights in this sense. It will be very important for me to make a distinction between wrongs done to fashion designers by illegal use of trademarks and those they claim are done by lack of copyright protection. This shows very clearly that the entire nation is harmed by misuse of trademarks. I imagine it will be quite a deal harder for anyone to find such clear data on how fashion copyright affects the nation.
United States. Cong. House of Representatives. 109th Congress, 2nd Session. To Amend title 17, United States Code, to provide protection for fashion design [introduced in the U.S. House of Representatives; 30 March 2006].
This is the bill proposed to amend Title 17 in order to provide copyright protection for fashion designs. It was introduced in the House of Representatives on March 30, 2006 by a Mr. Goodlatte. It has been referred to the Committee on the Judiciary. H.R. 5055 seeks to include fashion design under the category of designs protected. The bill states that fashion design can be under copyright for three years and changes minor details in the section about infringement, as well as including alterations for other sections.
H.R. 5055 is central to my thesis, and is what my paper will argue against. The recent date on the bill demonstrates that this is a current topic over which there is much debate and information. Definitions for terms such as “design” and “apparel” provide me with a useful point of reference on these otherwise elusive words.
United States. House of Representatives. House Judiciary. Design Piracy Prohibition Act, Opening Statement by Susan Scafidi. Hearing, 27 July 2006.
This is the text of Susan Scafidi’s opening statement on H.R. 5055. It calls for copyright on fashion design, a step she claims has become necessary due to the digital era. She states the original reason for copyright law and explains why she believes it only constitutional to allow for fashion copyrights, as well. She also responds to testimony made by the opposition. The point is made, as well, that all levels of the fashion industry can be copied, not only expensive designers. H&M is cited, a company many other articles labeled as an infamous copier. However, Scafidi reveals that even H&M has been knocked off and has sought legal action.
This opening statement is an excellent example of the argument opposing my own. It will be useful in shaping my paper, as there can be no argument without a counter-argument. She has much to say on the historical context of copyright law and claims it necessary to protect small American businesses. As it is my opinion that the inclusion of fashion in the realm of things copyrightable will only lead to monopolies, her argument about small businesses is one of which I need to be aware to counter.
United States. House of Representatives. House Judiciary. Design Piracy Prohibition Act, Testimony by David Wolfe. Hearing, 27 July 2006. Online. LexisNexis. 25 November 2006.
David Wolfe, Creative Director for the Doneger Group, testified against the Design Piracy Prohibition Act on July 27, 2006. This is the text of his testimony. He argues that the fashion industry in America is aided by the lack of fashion copyright, and that the passing of this bill would be harmful to the industry. He discusses the different places from which Americans draw fashion ideas; movies, history, etc. For example, he states that kimono-type clothing became popular after the release of "Memoirs of a Geisha." If one designer saw this movie and produced a kimono, does that mean that all others inspired by the movie would be copying the original designer? In many cases, no. Therefore, David explains, it is extremely hard to determine originality in the fashion world.
The argument is also made that the fashion industry in America seems to be doing just fine right now. In fact, it has been thriving for many years without copyright protection. Moreso, to allow copyright would stunt the market's growth and increase prices dramatically. This article holds many of the arguments I wish to make about fashion copyright. Wolfe also discusses the protection trademarks give to designers. It is one thing to include in a line of clothing an article similar to that of another designer. It is another thing entirely to attempt to pass that off as the work of the original designer. It is for this reason that trademarks exist. Viiolating the protection of these trademarks is illegal and has little to do with H.R. 5055.
17 US Code, Sec. 1301. 1998. Online. LexisNexis (TM) Academic. 25 November 2006.
This is one section of Title 17 of the United States Code that H.R. 5055 seeks to revise. I was unable to find Title 17 on one page in its entirety anywhere that I could link through penntags, but from this section one can navigate to the other parts of this title. This assures copyright protection for the owner of an original design on an article deemed useful. Also assured copyright protection through this section are the designers or owners of vessels. Other sections of Title 17 deal with things like what does not fall under design copyright, how long copyright protection lasts, infringement, etc.
While researching H.R. 5055, I found referencing this code to be extremely useful. The bill for revision outlines clearly what it will add or change about specific sections of Title 17 but it does not include any wording from the original document. It is vital that I have this code to study so that I can see what exactly H.R. 5055 proposes to alter.
Terms such as “original”, “useful article” and “vessel,” among others, are defined as to avoid confusion. These definitions proved helpful in my comprehension and research, for a few reasons. First, whilst reading H.R. 5055 I was not entirely sure what sort of vessel was being discussed. USCS Section 1301 cleared this up for me immediately. Also, having a clear-cut definition for “useful article” as set by the United States Code is useful, as the term is rather broad and vague.