Intellectual Property Laws in the Fashion Industry. By Eric H. Milliken, Founder of Sutter Law, a San Francisco Business Law Firm.
It is no secret that the fashion industry isn’t afforded many protections under intellectual property laws in the United States. But there is tension over what effect this has on the industry. On the one hand, there is the frustrated designer who feels that their art is being stolen by others and they have no incentive to create. On the other hand, there is the designer who has made their living copying elements of other designs and believes that ownership of intellectual property can have stifling effects on creativity. This blog was inspired by a TEDx talk by Johanna Blakely which can be found here. Ms. Blakely believes that the fashion industry is thriving due to little intellectual property protection.
Intellectual Property law governs creations of the mind. It is divided into three main categories patents, copyrights, and trademarks, which all aim to protect creator’s rights.
Patents are awarded for inventions that are new (original) and useful (functioning or serving their purpose). In the fashion industry patents could be filed for wrinkle free or UV filtering fabrics. The legal usefulness of patents in the fashion industry is limited due to the difficulty to prove a something is completely novel.
Copyrights are reserved for original pieces of art. However, if you ask any intellectual property attorney they will tell you that copyrights are not available for art or sculpture that has utility. Clothing is by definition utilitarian; it serves a function, mainly to cover us and protect us from the elements and thus is not afforded copyright protection. The policy behind this “utilitarian” rule is important. If a designer was allowed to copyright the basic building blocks of design, such as a collar, creativity in the fashion world would be incredibly restricted. People would have to seek permission to incorporate the basic elements of all clothing into their designs. A few individuals could dictate the entire industry. If you have questions about Copyrights feel free to contact one of our San Francisco business attorneys.
Another element limiting the power of copyrights in fashion is separability; it is the art on the clothing not the clothing itself that is protected by copyright. For example, in the fashion industry an artist may create a painting, copyright it, and print it on an item of clothing. In this example, the artwork is copyrighted and cannot be reprinted by others without permission; however, the overall design of the item of clothing is not copyrighted. This line between art and utility can be unclear.
Trademarks are symbols that identify a brand or a product trademarks can include labels, logos or slogans. Trademarks are common in the fashion industry and are some of the most recognizable elements of a fashion brand. For example, the Nike swoosh or the interlocking C’s of the Chanel logo are trademarks. Companies can use trademarks as a way to make it impossible for others to create a similar product. For example, a Louis Vuitton bag, with the classic LV marks repeatedly printed on the bag cannot be copied to a certain extent. A major part of the design of the bag is the trademarked logo which cannot be recreated without permission. Thus, trademarks can be a sword to designers seeking protection through intellectual property laws. If you have questions about Trademarks feel free to contact one of our San Francisco business attorneys.
So what is the argument that the inability of the fashion industry to take advantage of all these Intellectual Property laws is a good thing? Whether designers like it or not they are copying some element of something, whether it is a collar or a sleeve, all clothing designs have certain elements in common. By allowing designers to copy elements of each other’s designs new combinations, variations, and creations result and thus creativity is fostered. Furthermore, fashions have become more available. Clothing companies have made fortunes making high end designs affordable to the masses. This in turn has resulted in fast moving trends which can be good for business and creativity. No matter what side of the argument you are on, it is important to understand these legal concepts and how they may or may not affect your fashion business.
If you have more questions about the fashion industry and protecting your business please feel free to contact one of Sutter Law’s Business Law Attorneys.
