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Should Fashion Copyright Law Make Knockoffs Illegal?

January 12, 2015 Fashion Design and Merchandising, General 0 Comments

In the United States, most works of art are protected by copyright until 70 years after the creator's death. Music, visual art, film and literature are all the sole property of the artist, who controls the right to duplicate, perform or create derivative works from the piece. In Europe, fashion copyright law extends this protection to fashion design. In the U.S., however, fashion is completely unprotected and lumped in legally with useful items such as plumbing fixtures.

Should Fashion Copyright Law Make Knockoffs Illegal?Current State of the Law

Clothing, bags and other fashion items generally fall under the category of useful items. While other useful goods in the same unprotected category might be subject to a patent (for inventions), fashion items are not. However, certain elements of clothing can be protected by copyright if they are purely artistic and do not add utility.

Such features would include original graphics and patterns on the surface or nonfunctional 3-D elements that could be considered sculptures. Additionally, features such as logos, distinctive stitching patterns, distinctive packaging and other unique, identifiable, nonfunctional elements are protected by trademark law.

This means that only some knockoffs are illegal. For instance, a fake Louis Vuitton handbag violates trademark law by using the company's distinctive monogram pattern. However, if a replica of the popular Longchamp bag doesn't include the Longchamp logo, it is probably perfectly legal in the U.S.

Attempted Legislation

Several bills have been introduced in Congress in recent years to give copyright protection to fashion designs, including the Innovative Design Protection Act and the Design Piracy Prohibition Act. These bills have generally sought three years of protection for new designs. So far, no legislation granting fashion copyrights has passed both the U.S. House and the Senate.

Would Copyright Be Good for Fashion?

Surrounding these bills is a raging argument over the potential effects of intellectual property rights on the fashion industry. Proponents of enacting a fashion copyright law point to Europe's thriving fashion scene as evidence of the benefits of protection. They claim that knockoffs hurt designers, reduce motivation to create new designs and stifle the industry.

Opponents counter that intellectual property rights should exist only to drive creativity and that the fashion industry in the U.S. is thriving anyway. They contend that such laws would actually hurt independent designers who do not have the resources to defend themselves against lawsuits or to sue to protect their designs, granting a monopoly to the major fashion houses.

For an in-depth view of the arguments from respected leaders on both sides of the issue, check out this recent debate published in the opinion pages of The New York Times.

Photo credit: Flickr

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