Raustiala, Kal and Sprigman, Chris,Where IP Isn't. Virginia Law Review, In Brief, January 22, 2007; UCLA School of Law Research Paper No. 07-05.
This paper argues that while most areas that require creative ideas for profit advocate strong IP, the global fashion industry is an exception. The general argument in favor of a strong IP consists of three claims. The first alleges that new projects are usually very complicated and expensive to produce. Second, once a new work is created, other individuals can easily and inexpensively copy it. Finally, the individual who does copy this work will sometimes make more money than the original inventor and still keep all of the profit. So if this is the case, why is the fashion industry so successful despite the fact that it operates under a weak IP? This is known as the 'piracy paradox.' Fashion possesses this piracy paradox for two reasons. The first is induced obsolescence, which argues that because in wealthy societies high fashion signifies a high status, it must be created at a fast pace. Once a design reaches down to the rest of society, its value declines and the designers must create a new design to satisfy their affluent customers. However, this repeated cycle is only made possible through a weak IP. Other designers, usually lower ones, are able to copy high-end designs without the copyright problems, and thus the cycle is able run faster. The second reason is anchoring, which also works to keep the IP low. In order for a design to be quickly exhausted, the industry must somehow find a way to make the design popular. It achieves this by 'anchoring' different, but limited, versions of a certain design each season. For example, the design 'anchored' for Fall 2008 is high-waisted skirts. At this moment, hundreds of different types of high-waisted skirts from various designers are for sale. Soon, however, high-end designers will innovate a new design for Spring, and then it will be re-produced once again by lower-end designers and the cycle take place once again.
"Where IP Isn't" explains that the piracy paradox is necessary to keep the fashion industry successful. If IP was not as low as it is, the cycle explained earlier could not operate, thus forcing the fashion industry to weaken and eventually die out. Therefore, this paper will help me argue that a fashion copyright is needed to avoid relentless lawsuits, but it must be a weak one so that most designs can still be re-produced for the cycle. This article will also give me many useful examples to support the claim that a weak fashion copyright is optimal.
Raustiala, Kal and Sprigman, Chris,The Piracy Paradox: Innovation and Intellectual Property in Fashion Design. Virginia Law Review, Vol. 92, p. 1687, 2006; UCLA School of Law Research Paper No. 06-04.
This paper is extremely informative in that it addresses both sides of fashion copyright, whereas most other papers point out only one side of the argument. Moreover, it explores the question of why other major industries have obtained and used powerful IP protections for their products, while the fashion industry is for the most part still ineffective yet very economically successful. First, the paper argues that there should be an effective copyright on fashion because it protects the designers' creativity. However, it also argues that a weak IP actually helps the fashion industry in its innovation. Specifically, the terms "induced obsolescence" and "anchoring" are mentioned to explain that copying is actually beneficial for the fashion industry and in fact promotes fashion.
I will be able to refer to this article a great deal when writing my own paper because it explains how the fashion industry’s piracy paradox works and explores how copying plays an important role in the fashion industry’s innovation cycle. It also gives an ample of amount of history about fashion copyright, which is very important for my paper. Finally, it will help me to support my thesis because it talks about both sides of the argument. Therefore, in my paper, I will be able to address both sides of the fashion copyright problem and give reliable information to support either side, although ultimately, I will acknowledge that there should not be a fashion copyright.
United States. Cong. House. Subcommittee on Courts, the Internet and Intellectual Property Committee on the Judiciary. Testimony of Congressman William Delahunt, Hearing on Design Law- Are special provisions needed to protect unique industries. [Introduced in the U.S. House of Representatives; 14 February 2008].
This is the actual testimony of Congressman William Delahunt arguing in favor of the Design Piracy Pohibition Act, which is a bill that has been pending for quite some time in Congress. If passed, this bill will give all unique pieces of clothing three years of protection. In his testimony, Delahunt states that fashion counterfeiting costs US businesses a minimum of 12 billion dollars every year. He also says that because the fashion industry is expanding in the United States, more and more teenagers are pursuing fashion careers. However, with the growing piracy problem, these aspiring individuals will not be able to make their mark in the fashion industry because soon counterfeit and piracy will take over the industry. Moreover, he quotes Newsweek contributor Dana Thomas who stated, "Most people think that buying an imitiation handbag or wallet is harmless, a victimless crime. But the counterfeiting rackets are run by crime syndicates that also deal in narcotics, weapons, child prostitution, human trafficking, and terrorism." Therefore, he argues that if Congress passes the Design Piracy Prohibition Act, not only will it be highly beneficial for the fashion industry, but it will also help discourage crim syndicates and other illegal activities.
Although this source is against my thesis, which is against copyright on fashion, it is a very invaluable primary source that will allow me to acknowledge the other side of the debate in my paper. In doing so, it will make my argument against copyright even stronger because I will then state reasons why approving such a bill will still be unfavorable in the end. Furthermore, Delahunt makes several excellent statements about the fashion industry and the troubled economy at present that I will be able to address in my paper.
Hedrick, Lisa J.,Tearing Fashion Design Protection Apart at the Seams. Washington and Lee Law Review, Vol. 65, No. 1, pp. 215-273, 2008.
Lisa Hedrick's "Tearing Fashion Design Protection Apart at the Seams" discusses the possible consequences that may occur with the enactment of more effective fashion protection. More specifically, the paper points out the different proposals and bills concerning fashion copyright and protection and their effects on the fashion industry. Hedrick explains that copyright protection may not even be essential to make sure that innovation continues; annual sales in the US fashion industry increased from approximately 130 billion to over 200 billion over the past decade. Moreover, fashion protection could potentially create even more problems - if Congress enacts stronger protection, other creative industries, like food, furniture, and cars, may also request protection. Therefore, fashion protection may become the foundation for a big expansion of the US's intellectual property law. Hedrick also stresses the importance of "conceptual separability" in determining whether a product can attain protection. Conceptual separability is the expression that courts use to decide which parts of a product are qualified for copyright protection and which parts are not. This, however, has created confusing lawsuits and leaves most clothing designs unprotected. So despite several congressional attempts, effective protection for fashion and other products of design has never pulled through. Furthermore, Hedrick acknowledges that copyright for fashion is extremely difficult, especially for specific designs. Hedrick substantiates her point by quoting David Wolfe, a creative director for a fashion marketing and consulting company. He stated, "It is possible to create a new textile, a new print, but a new design is almost impossible because all we are doing in creating a new one is putting together existing elements in a different way" (241). Therefore, a key reason why fashion copyright is currently so feeble is because the qualifications for attaining the copyright is extremely difficult.
Ultimately, Hedrick explains that the fashion industry may thrive most effectively if Congress distinguishes fashion copyright laws and other similar types of protection from other industries such as food and furniture. Therefore, this paper will help me explain to my readers that because effective fashion protection is very difficult to achieve, it is better to have no protection than little protection. Thus, this will support my thesis, which argues that fashion copyright should not be enacted.
"Can Fashion Be Copyrighted?; Designers Want to Halt Knockoffs But Some Say They Spur Sales; 'Few People Can Spend $4,000'" The Wall Street journal [0099-9660] 248.60 (2006). B1.
This article examines whether knockoffs actually benefit the fashion industry altogether. Some argue that these knockoffs actually help keep the fashion industry going because once a design is copied, it forces the designers to move to a new design. For example, Joel Paris is head of website Anyknockoff.com, which offers imitations of designer handbags. Paris claims that his website benefits the high-end designers because it promotes their designs. Moreover, Allen Shwartz, founder of the label A.B.S. by Allen Schwartz, explains that he makes knockoffs for those who cannot afford the real design. However, other designers disagree. One designer, Catherine Malandrino, claims, "If you're creative, you can design original designs that are affordable. You don't have to knock off what other people are creating." This article states that at present, only registered logos, brand names, and unique designs are protected, such as the Burberry design. But other designers are still allowed to copy cuts or shapes of different designs.
"Can Fashion be Copyrighted?" will help my paper because it has many direct quotations from different designers which can substantiate my thesis. It addresses the pros and cons of knockoffs in the fashion industry. This, in turn, will help me decide whether a fashion copyright is necessary or not.
United States. Congress. 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].
The Design Piracy Prohibition Act is an amendment to section 17 in process of enactment in the United States Senate. If enacted, it would grant three years of copyright protection to fashion designs. At present, only parts of an apparel can be protected if declared 'original.' This bill would protect the whole piece of an article if enacted. The bill also officially defines ambiguous terms such as 'fashion design' and 'apparel.' In order to obtain the three years of copyright protection, the designer would need to register with the U.S. Copyright Office at least three months before officially distributing the design.
Because this act is a primary source, it will be very useful for my paper. It is an excellent example of one of the many attempts by Congress to enact a fashion copyright bill. Also, because the bill defines many terms commonly used in fashion protection, I will be able to use these definitions throughout my paper. Consequently, many of my explanations will be very clear and not open to more than one interpretation. Finally, the bill serves as a backbone for many of my other sources. Therefore, I will also refer to it when talking about another one of my sources in my paper.
Johnson, Elizabeth F. "Defining Fashion." Brooklyn Law School.
“Defining Fashion” examines the potential legislation problems and the various approaches courts will likely take in interpreting the term “fashion design” if the Design Piracy Prohibition Act is enacted into law. The current copyright law, governed by the Copyright Act of 1976, does not actually protect “fashion,” although the Act does provide protection for “pictorial, graphic and sculptural works, “so long as the works are not “useful article[s].” This current law also does not protect “design,” with the exception of the Architectural Works Copyright Protection Act of 1990, which provides copyright protection for architectural designs. The article explores the pros and cons if such a bill were enacted and how it would affect the fashion industry. It questions the terms definined in the bill, such as the definition of "fashion design" and "apparel." It argues that because these important terms are defined, legislation might either interpret them too broadly or too specifically, which would cause problems either way. The article also addresses the extent of fashion copyright today and history of the fashion industry. A period structure is mentioned, where designers such as Chanel and Gucci are at the top, and stores such as Old Navy and Wal-mart are placed far down. Two solutions to the excessive copying were also talked about- the DPPA and the VHDPA, which are in the process of being developed. The article further discusses these two approaches and how they would affect the fashion industry and copying. Finally, this article explains how the court interprets a defined term and then provides specific examples. In the end, the article explains that there is no clear solution and the protection of an item depends on the case and that Congress should give assist the courts in interpreting a case.
This source is a great asset to my paper because it explores the consequences if the Design Piracy Prohibition Act were enacted and how it would affect fashion copyright. There are also numerous court cases mentioned and suggestions for courts who interpret the bill differently. Furthermore, this article addresses certain problems that the courts face and the effect of the fashion copyright at present. After I discuss the Design Piracy Prohibition Act (the actual bill is another one of my sources), this article will allow me to further explore the pros and cons of it in my paper. Ultimately, it will support my thesis, but will also allow me to address the other side of the debate.
Pearson, Lisa, Lauren Estrin, and Ling Zhong. "In Vogue." Copyright World Apr. 2007: 1+.
"In Vogue" is a magazine article that also discusses the consequences if the Design Piracy Protection Act ever passes, but it also explores different types of IP and certain laws that pertain to these different types, including copyright, trademarks, and patents. Because different elements of a design may be protected under these different types of IP, this article addresses which of these elements pertain to which type of IP. Then the article continues by stating the advantages and disadvantages of each IP.
I chose this as a source because it is important to properly explain what IP is and its different types in my paper. Because many of my other sources focus on explaining why a fashion industry works best under a low IP but hardly explains what it is, my audience needs to know the definition of IP and how it pertains to my topic. This way, when I actually address my thesis and support it, my readers will understand the argument.
Sprigman, Christopher. "Fashion Copyright, 'Corruption,' and the Unheard Consumer." Public Knowledge Blog. http://www.publicknowledge.org/node/1404. February 20, 2008.
Christopher Sprigman, author of the article, "The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, wrote this blog, which elaborates on the common corruption of the intellectual property lawmaking process. More specifically, he argues that fashion is fueled by the copying. Yet the CFDA, which is run by a select few elite designers, is advocating a stronger IP for fashion designs. The problem though, is that the CFDA is only run by a small number of high-end designers, and the majority of the other designers have no say in this. Furthermore, the CFDA pursues similar goals as famous industries in Hollywood becuase they give a large amount of money to them. This is why there are so many Congressman in favor of a stronger fashion IP - not becuase it is the right thing to do, but because they are given money for it. Therefore, this blog focuses on the Congress aspect of fashion copyright.
Although this source is a blog, the author, who is also the author of another one of my very important sources, makes many good points about why certain individuals strive for a fashion copyright, even though it may not be the best decision. In particular, the author talks about the influence the CFDA receives from pursuing a stronger IP, although it does not represent most designers' views. Therefore, this blog will provide me with more reasons explaining why it is wrong to place a copyright on fashion. I will also be able to utilize many of Sprigman's statements in the blog to support my thesis.
Diane Von Furstenberg Studio, LP v. Forever 21, Inc. et al - 19, No. 1:07-cv-02413-VM (United States District Court Southern District of New York July 9, 2007).
This source is court case; specifically, high-end designer Diane Von Furstenberg filed a copyright- infringement lawsuit against the store Forever 21, who has more than once created apparel with designs that were extremely similar to Furstenberg's pieces. In addition to seeking financial damages, von Furstenberg requested a court order that Forever 21 remove and take back the dresses and any promotional display or commercial distribution of any of their pieces that infringe on DVF's copyrights. Furstenberg and many other designers have always had problems with copying from stores such as Forever 21. This is just one example out of numerous other court cases Furstenberg filed against Forever 21. Of course, Forever 21 and other stores at present are still creating knock-off copies of designer dresses because there is still no copyright law enforced prohibiting them from doing so.
This source will be very helpful for my paper because it is an actual lawsuit filed against a store that produced knockoffs of a particular designer. Since this is a specific example, I will be able to refer to this court case when I mention the designers' point of view on fashion copyright and whether it should be enforced. Moreover, including an actual court case will give my essay more credibility.