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.

 

 Mencken, Jennifer. A Design for the Copyright of Fashion." Diss. Boston College of Law, 1997.            

    http://www.bc.edu/bc_org/avp/law/st_org/iptf/articles/content/1997121201.html#fna

"A Design for the Copyriight of Fashion" was written by Jennifer Mencken in 1997. The essay, though short, covers some very important topics in regards to fashion copyright and protection of designs. The introduction considers that becuase the fashion industry is one of the largests and has no boundaries, economically or socially, it is hard to contain.

Mencken's essay discusses the reasoning behind not protecting designs and talks about the process from thought and conviction to pen and paper, and eventually, to the showroom and the streets. She briefly cites the ability for some fashion designs to be protected under Common Law, however, that angle is now since moot. Though the article was published in 1997, almost ten years ago, most of the information remains pertinent. Mencken discusses patents versus copyright and trademarks verus monopolies on fashion.

She continues to argue for the "Implementation of Fashion Design Copyright." She identifies that there is a "conceptual separability of fashion's artisict elements from the functionality of clothing." She cites the Copyright Act of 1976, allowing the line to be cast that fashion design is almost similar to writing, in respects, to protection. Conceptual separability versus the creative process is a major discussion in the paper.

She closes with a discussion on the scope of copyright and the "requirements for implementation." She says, " In creating a copyright system which recognizes the expressions of designers, many old fears, such as burdening the consumer and creating a marketplace monopoly, resurface. With tens of thousands of designers churning out work, it is easy to foresee chaos. How far does the copyright extend? For how long? What would constitute infringement?"

She closes with a discussion on the effect of copyright in fashion on the industry. She concludes that copyright on fashion should be a decision of the designers rather than the people who purchase their creations.

This article is particularly important to my thesis and argument for my paper as it attacks and answers questions about how copyright in fashion can and will affect the industry. This article is also important as it plays devil's advocate and expresses the concern with copyright and fashion and how the lack of copyright can be seen to have not affected the economic aspects of the industry.