The fashion industry has fought long and hard against counterfeiters who copy coveted designs and sell them for a small fraction of the price, but intellectual property laws have not really provided the industry with the correct ammo. Copyrights protect “art” but not “useful articles,” and fashion falls under the latter. Trademarks and trade dress protect brands/logos and look/feel respectively but only in the context of consumer confusion, and in most fashion counterfeit scenarios, likelihood of confusion is slim. So fashion has recently to the new darling of the smartphone wars—design patents. Design patents protect the ornamental design of a functional product, and to assert one, the plaintiff need only show that an “ordinary observer” would find the overall look of the infringing product substantially similar.
However, the tech and fashion worlds have collided beyond IP strategies. The fashion industry has embraced 3D printing, and the fruits of this new technology have started showing up on markets and runways—Continuum Fashion offers a bikini that is fully 3D-printed to order, Victoria Secret models boasted 3D-printed angel wings on the runway a few months ago, Iris van Herpen displayed a 3D-printed skirt and cape at Paris Fashion Week last year, and these designers are not alone. While the technology is quite far from enabling individual consumers to print their own clothing, it may not be long before they can print jewelry and other accessories.
This intersection of technology and fashion raises several concerns for intellectual property protection. 3D printing makes mass-manufacture more flexible and customizable, and in the near future, it could also bring manufacturing to individual consumers. The fashion industry targets manufacturers and sellers of counterfeit items or landlords who rent to such counterfeiters rather than individual consumers, but 3D printing will likely enable individuals to do more of the dirty work. It is much more difficult and harmful to public relations to target individual consumers for counterfeiting, and individual consumers are more likely to be judgment proof.
Further, 3D printers print from CAD files or computer renderings of physical objects, meaning that 3D scanning and printing technologies translate physical objects into digital formats the same way MP3 files digitized music. Digital information, as opposed to their physical counterparts, is infinitely and perfectly reproducible and extremely difficult to control. The music and film industries have yet to meaningfully solve their piracy problems since Napster and other file-sharing technologies severely handicapped copyrights in 1999. Patents, and thus the fashion industry, could suffer a similar fate as 3D printing becomes a more mainstream technology—the Napsterfication of fashion if you will.
But differences between the fashion and music industries as well as the inherent nature of physical objects may help the fashion industry avoid what the music industry couldn’t avoid.
First, the technology is more complicated and the target objects of duplication much more varied. While the number of music genres may be vast, the way it is converted to a digital file and copied is the same. For 3D printing, there are so many more factors and limitations on what the technology can actually produce.
Second, the economics are different. The music industry had a hard time coming up with solutions to pirating other than filing ridiculous lawsuits against individual consumers because the music industry couldn’t match free music. And downloading music once you had a computer and internet is, in fact, completely free rather easy. While the costs will decrease as the technology develops, printing a product will inevitably carry costs—it takes more time, requires materials, and a 3D printer does not have a use beyond 3D printing (whereas a computer and internet’s sole purpose isn’t downloading MP3 files).
While it may be a while before I can print my own Prada, it’ll be interesting to see how the fashion world works to ensure that the law protects their designs.
Christine Shim is a J.D. candidate, ’15, at the NYU School of Law.