Although U.S. intellectual property laws cover a wide range of industries, they have lagged behind in the world of fashion design. U.S. laws are much less protective of fashion designs than European laws. Although the U.S. does afford some protection to designers, they currently cannot copyright articles of apparel. Over a century ago, the U.S. Copyright Office decided that all clothing is functional. Because a “useful article” cannot receive copyright protection, clothing designs have largely been free from copyright protection because the designs were considered to be inextricable from the article they are attached to. Although the Supreme Court announced a new test for determining whether a clothing design is in fact functional or not in 2017 in Star Athletica v. Varsity Brands, receiving copyright protection for fashion designs is still not common.
What Is the Innovative Design Protection Act?
The fashion industry has long been lobbying Congress to extend copyright protections to clothing. Congress listened, and introduced the Innovative Design Protection Act (IDPA) in 2012. In essence, the Act would extend the Copyright Act to cover, among other things, apparel, footwear, and handbags. Under the Act, if a fashion design were to receive protection, the copyright would last three years. Additionally, any design that may be similar to an already-copyrighted design would be free from liability if it was independently created (i.e. created without the knowledge that the design was already protected and was not copied from that protected design).
Why Do People Oppose the IDPA?
Those who strongly oppose the IDPA say copyright protection of designs will “kill” fashion. They believe that the ability to copy fashion designs is integral to the industry’s growth and success; they see it is a natural part of a fashion item’s life cycle for the product to eventually be copied and mass produced. A look at the success of fast fashion brands like Zara and Tophshop exemplify this point. Taking designs from the runway to sales racks in a matter of weeks, these retailers are able to copy the latest season’s designs in no time and at a fraction of the cost. This is to the benefit of consumers who may not be able to afford the latest Dolce & Gabbana overcoat, and I see two reasons why copying may also be good for the industry as a whole: (1) it can increase overall sales across all manufacturers and retailers and (2) it provides an incentive to constantly come out with new designs, as the fashion life cycle is now shorter.
Why Should Congress Pass the IDPA?
Although many argue that copyright protection would stifle industry growth and creativity, I believe that the benefits of affording designs copyright protection outweigh the foreseeable harms. U.S. copyright law is rooted in utilitarian goals; is meant to promote progress and encourage advancements and growth in fields such as the arts and sciences. I believe those who oppose the IDPA and see it as a law that will hinder the growth of the fashion industry have a valid argument in that the fact that designs can be copied so quickly and easily in today’s day and age means that fashion brands are more likely to come out with new designs more frequently than they would were their designs to receive a three year protection from the Copyright Office. And although it may be true that the ability to copy designs has led to an increase in total revenue for the fashion industry, I believe that there are some values greater than money that should take precedence when considering copyright legislation. Namely, the value we place on morals is more important than any monetary interest.
From the time we are children, we are taught that it is wrong to take that which does not belong to us. As we get older, we are taught that it is not right to take another’s thoughts or ideas without giving credit. Why, then, is it okay to take another’s designs – which, similar to artwork that does receive copyright protection, not only has economic value but also sentimental value. I believe that just as an artist puts a countless amount of time and energy into creating a unique painting, so too does a fashion designer put in immeasurable amounts of hard work and creativity in order to create a one-of-a-kind shoe. That resultant product of that hard work and effort should be protected because that is the fair thing to do.
Furthermore, although some would argue that extending copyright would lead to less variety of designs for sale, it is very well possible that if retailers who copy fashion designs were no longer able to do so, then they would begin designing their own pieces, which would lead to an increase in productivity and creativity. Overall, it seems that competition would be promoted, not stifled, if copyrights were to be extended to fashion designs.
What Is the Current Status of the IDPA? Since it was introduced over six years ago, the IDPA has yet to be passed by either house of Congress.