Imagine you are an emerging fashion designer. As a newcomer to the industry, you are struggling to get by without the resources of a large fashion company, such as Zara or Gucci. Therefore, without recognition or funds, your creativity becomes your currency. Luckily, you have a unique design sensibility and you develop a series of T-shirts emblazoned with funny and relatable quotes. Your products are a hit and begin trending on social media. This is the break you’ve been waiting for as a hard-working designer. However, others have noticed your success. You are dismayed to learn that Company X, a major retailer of casual clothing, has copied your designs and is selling them for prices that you are unable to compete with. Over the next few weeks, your online business slows to a trickle, and your dream seems to be slipping from your grasp. Angered by Company X’s blatant theft of your creative work, you take them to court because the fashion outlet is clearly in the wrong. You believe this will be an open and shut case in your favor, but you are about to face a second disappointment.
According to current copyright legislation, the court would rule in favor of Company X, effectively making Company X’s copying of your designs completely legal. This lack of protection for fashion intellectual property has led to designers having their clothing appropriated by popular low-end brands, typically known as fast fashion brands. Essentially, fast fashion brands exploit the early showcases of clothing by original designers and quickly sell their knockoffs. The fact that copycats are able to continue this practice is rooted in how fashion is interpreted by current U.S. law as a manufacturing process rather than an art form. While proponents of current copyright legislation suggest that a lack of copyright protection promotes innovation within the industry, there is clear evidence that existing American copyright laws in the protection of fashion design are inequitable, and thus, in need of modification.
When it comes to the topic of creative ownership, the law states that the developer of any artistic design, such as a musical composition or a painting, has the right to copyright protection of their work. However, this protection does not extend to fashion design, even though fashion design is similar to architectural design, which is a recognized art under the Copyright Office. For instance, fashion designers must have decent drawing abilities in the creation of sketches for designs, as well as a keen eye for intricacies and details such as measurements. In addition, every artistic field must be able to adapt their style to the trends of the time period, an ability which the fashion industry has consistently demonstrated.
Nonetheless, these apparent commonalities have not influenced the Copyright Office to see fashion design as an art, and thus, garments are treated as a manufactured product. According to the Copyright Office, in the “Statement of the United States Copyright Office Before the Subcommittee on Courts, the Internet, and Intellectual Property, Committee on the Judiciary,” the qualifications necessary for a design to receive copyright protections are as follows: the design must, “‘[incorporate] pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.’” In other words, the design must integrate a physical or conceptual feature which can exist separately from the industrial design (the fabric). The rationale for such an acute constraint on copyright protection, as explained by the Copyright Office, is that there must be a certain sanction for imitation in fashion in order to foster innovation (refinement through imitation) within the industry.
While one can acknowledge the value of using current designs as inspiration, that cannot be accepted as a reason for the overriding eligibility requirements for copyright protection. Writing in “Understanding the scope of architectural design protection,” David H. Bowser elaborates on copyright law in regards to architecture, as outlined by the Architectural Works Copyright Protection Act in 1990. Bowser explains that utilitarian aspects of buildings, such as a window, cannot be copyrighted; however, a specific furnishing on a window has the potential to receive copyright protection. However, the arbitrary “separability” test used in determining copyright protections for clothing designs would not allow for the design of the casing of a window to be copyrighted if applied to architecture. In other words, despite fashion design being an art form, the requirements necessary for a garment to receive protections are noticeably stricter than those for all other artistic fields. Altogether, current legislation ought to be reevaluated because the categorization of fashion design as manufacturing does not accurately value the creative process which the art requires.
Current copyright legislation creates a regulatory environment that disenfranchises the creative forces behind fashion, leaving them susceptible to theft of their intellectual property from fast fashion brands. Chavie Lieber, author of “Fashion brands steal design ideas all the time. And it’s completely legal,” elaborates upon the past situation of British designer Carrie Ann Roberts, whose original design was copied by Old Navy. To summarize, one of Roberts’ T-shirt designs were copied by Old Navy and sold for half the original price. Notwithstanding a flood of support for Roberts, Old Navy continued to sell the knock off shirts. Additionally, Old Navy replied to Roberts indicating that the company was within legal limits, as Roberts neither trademarked the quote, font, or graphic design. As a large business with vast resources to produce copies of Roberts’ design, Old Navy shut Roberts out of the market for a product that she created. This is only one of an ongoing and increasingly prevalent problem within the industry. Fast fashion brands have free license to exploit the intellectual property of smaller-scale companies due to the stringent limitations on copyright protection in the industry.
Independent designers are not the only victims of this regulatory gap. Established luxury fashion houses also face the risk of having their designs copied by fast fashion companies. On Hasan Minhaj’s show, the Patriot Act, the political comedian highlighted a specific example. Soon after Kim Kardashian West modeled a dress made by Thierry Mugler, the notorious fast fashion brand Fashion Nova started mass-producing copies of the couture design. Part of the appeal of luxury fashion is its high quality and exclusivity, and thus, flooding the market with copies of an original luxury design dilutes the value of luxury brands, reducing the incentive for consumers to buy the original design.
Although fashion has tangible similarities to other art forms, the qualifications necessary for a garment to receive copyright protections are significantly more rigorous due to the current legislation’s neglect of the creative proficiency fashion design entails. This misclassification of fashion has moreover legalized the ability of fast fashion companies to knock off the original designs of high-end brands as well as independent designers. Ultimately, modern copyright legislation in fashion design has inequities that need to be reformed to protect both the intellectual property and creativity of fashion designers.