Robin M. Nagel*, Comment, Tailoring Copyright to Protect Artists: Why The United States Needs More Elasticity in its Protection for Fashion Designs, 54 U. Rich. L. Rev. 635 (2020).
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For as long as copyright protection has existed in the United States, protection has never expressly extended to fashion designs because copyright law categorizes fashion designs as “useful articles” that do not receive any protection. In the eighteenth century, this policy perhaps made sense—most clothing was generic, non-decorative, and required little creativity for many of the everyday garments people wore. Clothing in the eighteenth century was commonly made up of useful articles that served very little purpose outside of their utility. However, in today’s society, fashion has transformed into an industry that prizes creativity, ingenuity, innovation, and something more than just utility. Copyright laws have not developed alongside the fashion industry. As a result, almost no fashion designs can receive copyright protection, and other areas of intellectual property law provide little to no protection, especially for smaller, less-established designers. This lack of protection has very real and sometimes very detrimental effects on designers who have the misfortune of a third party stealing their work and reproducing it at low cost. The current hierarchy in the fashion industry favors the well-established designer with the ability to reproduce a stolen design en masse and sell to the world, while the small, independent designer enjoys no recognition and is generally unable to collect for what almost anyone would agree is a morally wrong act.
Copyright law in the United States should change to reflect current practices within the fashion industry, which have developed over time to meet the industry’s changing needs. At one time, fashion designs would have been protected under copyright law; early drafts of the Copyright Act of 1976 included protections for fashion designs that were not “staple” articles, and multiple subsequent bills have been introduced in Congress to extend protection to fashion designs that are more than simply generic pieces of clothing. The need for change is also heavily based on the United States’s membership in the Berne Convention for the Protection of Literary and Artistic Works, which includes particularly heavy protection of copyright authors’ moral rights. The Berne Convention is an international agreement that coordinates copyright protections internationally, providing specific rules for when a copyrightable creation begins to exist, setting up terms of protection, and requiring that all parties recognize the copyrights from all other countries party to the agreement. Despite being a party to the Berne Convention since the 1980s, the United States, as a general rule, has declined to adopt any kind of moral-rights-based copyright protection, but clearly seems to be required to do so, not only to provide the reasonable protection that is due to the fashion industry, but also to fulfill its duties as a party to the Berne Convention. The United States needs to grant more protection, through expanded and more elastic copyright laws, to those unique and creative fashion designs that call for greater protections against copying and knockoffs.
The first Part of this Comment will outline basic copyright law and policies in the United States, including the “useful article” doctrine, which dictates that fashion designs are usually classified as useful articles that are not eligible for protection. Part I will also introduce Brazilian bikini maker and vendor Maria Solange Ferrarini and her suit against Kiini, L.L.C. and its owner, Ipek Irgit, to illustrate the need for greater protections for fashion designs and the harms that will occur in the absence of such protections.
The second Part of this Comment will highlight the fashion industry’s unique history of policing copying without legal protections and why those methods no longer work in the industry. Part II will further discuss the development of the fashion industry in the last century and the current attitudes surrounding the creativity and innovation that flow into fashion designs from not only the high-end fashion houses, but also the bikini vendor on the beaches of Brazil.
The third Part of this Comment will outline the various ways in which this law could change, as well as the legal theories behind change in the first place. Part III will also discuss moral rights copyright protection and various European copyright laws which protect authors’ rights beyond simply the economic rights that are recognized in the United States. Part III will also analyze the single moral rights copyright law, as well as other legislation introduced throughout the past decades in Congress that would have provided protection to fashion, all of which failed to pass through Congress and become law.
The fourth and final Part of this Comment returns to reflect on the case study and, after taking all of the possible solutions into account, makes a final recommendation on the best way or ways in which the current copyright regime in the United States should adapt to allow protection for fashion designs.
* J.D. Candidate, 2020, University of Richmond School of Law; B.A., 2017, Seton Hall University. I would like to thank Professor Chris Cotropia for his guidance and support throughout this writing process and Professor Christopher Corts for his unending encouragement and for aiding me in my legal writing since the day I entered law school. To my family and friends, I am forever grateful for your love and support, not only while I was working on this Comment, but in life. And, finally, I want to thank Ashley and the rest of the University of Richmond Law Review Volume 54 staff and editors for helping me ensure this Comment was ready for publication.