Candidate Number: QJFB8

Faculty Of Laws

LLM Dissertation 2010

LAWSG048 Competition Law and Intellectual Property Rights: The Regulation of Innovation

Fashion Industry: Absence of IP Feeding the Creative ProcessIs Fashion an Exception or should it be a Rule?

Candidate Number: QJFB8

Candidate Number: QJFB8

Table of Contents
1. 2. INTRODUCTION: THE PARADOX .......................................................................... 1 FASHION INDUSTRY AND THE ECONOMY ........................................................ 3 2.1 Fashion: A Ready to Share Enterprise ........................................................................ 3 2.2 Fashion Carousel: Fast And Furious ........................................................................... 5 2.3 Fashion Trends: Blast from the Past ......................................................................... 11 3. COMPARISON OF PROTECTION UNDER US AND EU IP-REGIME ................ 12 3.1 United States ............................................................................................................. 12 3.1.1 Conceptual Separability Doctrine fails to include fashion designs in its scope. 13 3.1.2 Lacuna in other IP laws to afford protection to fashion designs ........................ 16 3.2 European Union ........................................................................................................ 19 3.3 Proposed Protection by Schumer and its possible effects ......................................... 23 4. 5. 6. IS FASHION AN EXCEPTION OR SHOULD IT BE THE RULE? ........................ 29 CONCLUSION ........................................................................................................... 33 BIBLIOGRAPHY ....................................................................................................... 36

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1. INTRODUCTION: THE PARADOX Imagine for a moment that some upstart revolutionary proposed that we eliminate all intellectual property protection for fashion design. No longer could a designer secure federal copyright protection for the cut of a dress or the sleeve of a blouse. Unscrupulous mass-marketers could run off thousands of knock-off copies of any designer's evening ensemble, and flood the marketplace with cheap imitations of haute couture. In the short run, perhaps, clothing prices would come down as legitimate designers tried to meet the prices of their free-riding competitors. In the long run, though, as we know all too well, the diminution in the incentives for designing new fashions would take its toll. Designers would still wish to design, at least initially, but clothing manufacturers with no exclusive rights to rely on would be reluctant to make the investment involved in manufacturing those designs and distributing them to the public. The dynamic America fashion industry would wither, and its most talented designers would forsake clothing design for some more remunerative calling like litigation. All of us would be forced either to wear last year's garments year in and year out, or to import our clothing from abroad. Of course, we don't give copyright protection to fashions We never have. Jessica Litman 1 This thought leads one to ponder whether the culture of stealing, borrowing, and appropriation is a drive for an imaginative mind or does it only represent a state of anarchic turmoil where the industrious and original artists are victims of style piracy? Can
1

Jessica Litman, The Exclusive Right to Read, 13 Cardozo Arts & Ent. L.J. 29, 44-45 (1994).

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this tendency proliferate in a milieu of weak IP protection? Is market discipline really needed in the fashion sector? Or is the unrestrained market strong enough to stimulate innovation? Solving these puzzles can lead to a compelling impact on the economy in general and the fashion world in particular. It is astonishing to see such an evolving industry blend remarkably well in a complex market structure. The competing businesses operate without strict regulations yet sustain themselves with minimal clashes. The ability of the style world to nurture unparalleled innovation and generate gigantic revenues in a low IP equilibrium remains the most attractive element of this enterprise. The traditional argument that artists and designers will lack the drive to create in the absence of IP rights appears to be a smart argument as it has triumphed in advocating new rights- Copyright terms under the US Copyright Law underwent a major amendment and were increased to life plus 70 years as compared to the 14 year long protection given by the Constitution earlier. 2 However, a low IP equilibrium in the fashion world functions as a counter example; Fashion Industry being the breeding ground for some magnificent innovations. In the sections below, I first go on to describe the operations of fashion industry in the economic world. The main highlight of this section is the fast track fashion cycle and a ready-to-share regime that propels the cycle even further. The next section deals with the current levels of IP protections available for fashion designs in the two major legal systems of the world i.e. the United States and the European Union. This section also identifies the major lacunae in the Community Design Registration System prevalent in the EU suggesting the inefficiency of such artificial safeguards. Based on this comparison, I argue how the recently proposed Design Piracy Bill in the US, if turned into legislation, could be of detriment to the designers and the fashion economy. Finally, I have listed a few possible scenarios without strenuous IP rights, demonstrating how fashion can serve
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United States Code, Title 17, 302(a) [hereinafter referred to as U.S.C.].

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as an example for other creative genres. To summarize my conclusions, I hold that the state of affairs in the Fashion Industry should be left as it is, since fashion is constantly regenerating and renovating itself bursting with fanciful and radiant innovations. 2. FASHION INDUSTRY AND THE ECONOMY 2.1 Fashion: A Ready to Share Enterprise It comes as no surprise that practices like imitation, duplication, and reproduction are embraced by the Fashion Industry as cardinal principles of behaviour. Fashion designers need not pay high royalties or worry about infringement of IP Rights. The ideas are available in the form of a bottomless repository, allowing designers to borrow or steal without hesitation. Designers capitalise on borrowed inspiration but in return produce outfits that are unique and exclusive in their own vogue. Style-Piracy is a way of life now. It can be described as the hijacking of garment designs by an artist to secure without expense, the benefit of the original designers work. 3 The live coverage of fashion weeks signifies that a copycat like Allen B. Schwartz 4 can pick up any presentation that will appeal to his customers, tweak them and have them available to the public in a flash, maybe even the next day itself. 5 Design Pirates can be frequently seen sneaking into a designers show in Paris (or raiding the studios trash for sketches) and having knock-offs available in New York sooner than one can imagine. 6 Cheaper

3 4

Safia A. Nurbhai, Style Piracy Revisited, 10 J.L. & Pol'y 489 (2001-2002). Samantha L. Hetherington, Fashion Runways Are No Longer the Public Domain: Applying the Common Law Right of Publicity to Haute Couture Fashion Design, 24 Hastings Comm. & Ent. L.J. 43 (20012002) calling Allen B. Schwartz the king of knock off couture. 5 Kal Raustiala & Christopher Sprigman, Fashion Victims: How Copyright Law Could Kill the Fashion Industry, New Republic Online, Aug.14, 2007 available at http://homepages.law.asu.edu/~dkarjala/Copyright/Raustilia&SprigmanCRKillsFashion(NewRepublic2007).htm 6 Jennifer Mencken, A design for the Copyright of Fashion, 1997 B.C. Intellectual Prop. & Tech. F. 121201 available at http://www.bc.edu/bc_org/avp/law/st_org/iptf/articles/content/1997121201.html

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production processes and shorter fashion cycles have led to an ever-increasing demand of knock-off articles. Designs are rapidly and commonly copied by retailers like H&M with over 2000 stores all over North America, Europe, United Kingdom, Middle-East and Asia as opposed to 1827 in June 2009. 7 H&M was said to have launched 'disposable fashion'. 8 The Sales Development Report of H&M shows that sales in local currencies including VAT in 2010 have increased by 20 percent compared to the previous year. However, it was further revolutionized by Zara when it hit the formula for fast fashion. Harvard Business School examined how Zara's supply chain functions; allowing it to create, manufacture, and deliver a garment in fifteen days. 9 The report was followed as an example by numerous retailers like BHS and Marks & Spencer. Zaras Senior Manager used the queuing theory to explain the nonlinear relationship between capacity utilisation, demand variability and responsiveness. 10 Thus customers in Zara can always find new productsbut they're in limited supply thereby tempting the customers to buy it right away. The average times a tantalized customer pops into such fast fashion stores is way higher than that in high end boutiques and designer showrooms for the reason that there is a constant change in the stock at such disposable fashion stores. 11 Vertical retail and bridge lines appear to be another alluring avenue in terms of profitability. In fact many fashion design firms like Carolina Herrera, Oscar de la Renta, Elie Tahari and Juicy Couture have all gone into retail to grow and control their brands,

H&M Information Material available at http://www.hm.com/gb/corporateresponsibility/informationmaterial__downloadsarchive.nhtml 8 BBC News-Store Wars: Fast Fashion on June 9, 2004 available at http://news.bbc.co.uk/1/hi/business/3086669.stm 9 Kasra Ferdows, Michael A. Lewis and Jose A.D. Machuca, Zara's Secret for Fast Fashion, Harvard Business School Archive available at http://hbswk.hbs.edu/archive/4652.html 10 Ibid. 11 BBC News- Store Wards: Fast Fashion.

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according to Laura Pomerantz of PBS Realty. 12 For example, Giorgio Armani produces a high end bridge line marketed via its Armani Collezioni and Emporio Armani brands and is characterized by classy designs. These brands suggest tradition and sophistication, There is also a better clothing line distributed through its Armani Exchange brand for the trendy youngsters. It is less expensive than Armani Jeans which is a lower end collection marketed via departmental stores instead of independent retail outlets. 13 The omnipresent ready-to-share culture is further fuelled by media which runs regular shows on knock off clothing. There are magazines having columns devoted to knockoffs called Splurge vs. Steal 14. The digital world has websites selling affordable imitations of high-end designers. 15 This consequently lets a consumer enjoy the benefits of multiple choices and cheaper bargains. The fashion industry is always on the lookout for the hottest trends n latest designs. For example, double denims were considered a fashion suicide until recently. But they are back again on the fashion shows of big brands like Calvin Klein and GAP and also hitting the racks of stores like Selfridges. 16 How did this U-Turn happen? Simple, be it music, food or cars, all trends have a life cycle and none more so than fashion trends. 2.2 Fashion Carousel: Fast And Furious Mark Tungate, a British writer based in Paris, describes the sensation of exploring the world of fashion as gate-crashing an exclusive club. 17 It is undeniable if one looks at the

Press Release, Berns Communications Group, Berns Communications Group Unveils 2005 Retail Strategies Noted by Leading Industry Experts, (Dec. 6, 2004), available at http://findarticles.com/p/articles/mi_m0EIN/is_2004_Dec_6/ai_n7637018/?tag=content;col1 13 Iain Ellwood, The Essential Brand Book: Over 100 Techniques To Increase Brand Value (Kogan Page, 2002). 14 Marie Claire Magazine, details available at http://www.marieclaire.com/ 15 Websites like knockoffs.com, anyknockoff.com, edressme.com operate openly on the World Wide Web. 16 www.guardian.co.uk 17 Mark Tungate, Fashion brands: Branding Style from Armani to Zara (Kogan Page Ltd., 2005).

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enormously over-emphasized brand culture around us. Haute Couture designers like Chanel, Christian Dior, Jean Paul Gaultier and Ready-to-wear designers like Donna Karan, Tommy Hilfiger, Lacoste, and Alexander McQueen etc. have redefined the glamour world and brought about a significant revolution. However, it all started from Charles Frederick Worth (1825-1895) who set the trends for the upper class women in the latter half of the nineteenth century. He is known as the first true fashion designer for the reason that he is the first one to sew his own label into the garments that he created. 18 Before this Englishman set up his Maison Couture in Paris, apparel design for the haut monde was usually administered by anonymous dressmakers. In the 1500s the dress makers worked under the strict instructions supplied by the aristocracy but this tendency was reversed soon after Worth started dictating what the Queen and the ladies wore. 19 The word couturier was invented as a new profession and the industry boomed out of a simple necessity. One essential reason underlying this study is to ascertain the relationship between Intellectual Property Laws and the drive to create and innovate. According to the standard theory if law doesnt protect the authors/creators rights to distribute and claim profits, then the drive to create and innovate is lost. However, if we look at the fashion industry, it seems to have not just survived, but flourished inspite of rampant piracy and copy. Copying is the drive for fashion industry and the fashion cycles. Fashion cycle is the time period during which fashion i.e. a particular style sustains itself in any market. Principally there are 4 stages in a fashion cycle: Firstly there is an Introduction Stage where fashion designs are launched by way of fashion weeks in a global metropolis. This is when fashion evolves and is ready for
18 19

Jacqueline C. Kent, Business Builders In Fashion (The Oliver Press, Inc., 2003), p.21. Ibid.

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adoption by the stylists. The articles are produced in small quantities and they are typically high-priced. This is the stage where an article is very distinct and is very desirable. Secondly, there is the Rise Stage. Herein the manufacturers and designers take up the newly launched designs and produce similar fashion goods with cheaper fabric or lesser detail. Fashion magazines, internet, newspapers, advertisements are full of emulations of such trends. In this stage there is massive production and the goods are extensively accepted since they are more affordable and readily obtainable. Thirdly, we have the Peak Stage where fashion is acquiesced by masses there being a range of prices and a lot of consumer choice. Time span at this stage helps to establish if a particular fashion would turn into a classic. Finally, there is an Obsolescent Stage. The demand for fashion goes down and consumers are no longer willing to pay that high a price for the product. On the whole, fashion has completely penetrated the whole market. According to Raustiala and Sprigman, there are, amongst many, two fundamental explanations for the atypical behaviour of the fashion industry. They are Induced Obsolescence and Anchoring. 20 Induced Obsolescence: According to them, Fashion is a positional good which reflects the status of an individual. The fashion cycle clearly explains how the value of a product grows gradually and once it reaches its saturation point, there arises a demand for new products in the market. The cycle is driven by wide scale copying and imitation, and this in turn shortens the span of each fashion cycle. It is argued that the industrys goal is to drain the status-conferring value of clothes as quickly as possible in order to induce us to

Kal Raustiala and Christopher Jon Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, Virginia Law Review, Vol. 92, 2006.

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pursue the new thing. 21 As Miucci Prada puts it, We let others copy us. And when they do, we drop it. 22 Anchoring: The second root cause that the authors identify for the fashion industry's lowIP equilibrium is anchoring. Anchoring provides customers with useful information with regard to the latest trends and the fads in fashion. It signals to them when it is time to change their wardrobe. It is the process by which the fashion industry is able to put consumers on notice of changes in fashion trends. 23 These aspects indicate how consumers distinguish between good fashion and bad fashion. Also they explain how status conferring goods are disposed of by a consumer sooner than one can imagine. This can be further elaborated with the help of a style-cycle theory that sets out the fashion hierarchy as follows; the wealthy class sets the fashion trends because they wish to be distinctive. The lower class buys cheaper knock-offs of the styles. Apparently, by the time it reaches the masses, the trend becomes so ordinary that it is discarded by the upper class trend setters. 24 As Hilary Alexander (Fashion Director of The Daily Telegraph and winner of the British Fashion Journalist of the Year Award 2003) puts it, The fashion wheel has got faster and faster, spinning not entirely out of control but certainly spinning at a rate that can make you dizzy. 25

www.wipo.int/edocs/mdocs/.../wipo_smes_ge_08_topic05.ppt Raustiala & Sprigman, at 1722 (quoting The Look of Prada, IN STYLE MAGAZINE, Sept 2003 at 213). 23 Ibid. 24 Jennifer Mencken, A Design for the Copyright of Fashion, B.C. Intellectual Prop. & Tech. F. 121201 (1997) available at http://www.bc.edu/bc_org/avp/law/st_org/iptf/articles/content/1997121201.html 25 BBC News on Store Wars: Fast Fashion.
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An explanation for this vigorous movement of a fashion cycle is inexplicable. However, many have suggested theories to suggest the rise and spread of new ideas. 26 Some analysts like Kroeber and Young have attempted to link social and economic changes with evolution of new styles; the popular but unverified assertion that skirt lengths rise and fall with business cycles is one example. 27 A history-centred theory suggests that fashions are usually resurrected from the past. 28 A culture-centred theory notes that new styles may originate from cross-cultural diffusion; when one culture contacts another, a notable result is often the transfer of material artifacts including dress. 29 Finally, the modernism theory proposes that fashions change with the times, or that new life-styles require complementary fashions. The most general theory is the one suggesting that nearly any creative or innovative individuals can become leaders of fashion trends, provided their innovative choices are reasonably in line with the social climate and life-styles of the times.
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The principal

elements of such a theory are outlined by sociologist Blumer (1969), a theorist on the sociology of collective behaviour. Like other analysts, Blumer argues that fashion leadership is no longer confined to the upper class. Instead he suggests that new fashions emerge from a process of collective selection, a process by which collective tastes are formed by many people and in this process, the styles which most closely represent the

George B. Sproles, Analyzing Fashion Life Cycles: Principles and Perspectives, The Journal of Marketing Vol. 45, No. 4 (American Marketing Association, 1981), pp. 116-124 available at http://www.jstor.org/stable/1251479 27 Ibid. 28 Ibid. 29 Ibid. 30 Herbert Blumer, Fashion: From Class Differentiation to Collective Selection, Sociological Quarterly, Volume 10, Issue 3 (Blackwell Publishing on behalf of the Midwest Sociological Society, 1969), pp. 275291.

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existing trend in consumers' tastes will slowly gain a competitive edge through increasing acceptance and finally will become fashionable. 31 Thus, fashion gradually diffuses across classes and social networks as a result of marketing strategy (communication and pricing), mass availability in all types of retail stores, and social appropriateness to life-styles in the social networks. These collective forces of the mass market are more powerful than processes of upper class leadership and social competition. Fashion-Houses repeatedly try to seek a monopolistic position in order to stay ahead in the race by using marketing gimmicks, employing techniques to predict new trends, subscribing to newsletters like Tobe Report 32 for tips. But since a trend analysis is based on lifestyle changes, it is fairly difficult to analyse. This uncertainty and vacillation serves as a potential hazard to the market participants. Teri Agins in her book has revealed the internal complexities of the fashion market, and portrays the dramatic change in the fashion environment into a dynamic and competitive industry over the past 40 years 33. It describes marketing as the king responsible for channelizing creativity in this sector. It denotes fluctuating cultural spirits, identities and statuses with newly introduced creative ideas. It reflects the spirit of the times, and is a manifestation of collective tastes in any society. It is not just about the Spring or Autumn fetes across major metropolis anymore; fashion now is a concomitant way of life. One interesting fact about the fashion world remains that- it is more evolutionary than revolutionary as described below.

Ibid. Tobe reviews the retail and wholesale landscape with a focus on trend, market direction, lifestyle changes, store analysis, and the impact of pop culture and media. Information available at http://www.tobereport.com/about_us/index.html. 33 Teri Agins, End of Fashion: How Marketing Changed the Clothing Business Forever, (HarperCollins Publishers, 2000).
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2.3 Fashion Trends: Blast from the Past Even the most sophisticated designers continuously raid the resourceful past to be inspired and eventually churn the borrowed ideas into their own stylised interpretations. This remains one of the key secrets behind the flourishing empire of fashion. Ralph Lauren, Hedi Slimane, Karl Lagerfield and other luminaries have recurrently borrowed and adopted classic designs from others and incorporated into their own work by adding a few novel artifacts. 34 Ungaro was the protg of Balenciaga; Lagerfeld drew upon Chanel; Tom Ford incorporated the traditions of Gucci; and Alexander McQueen recognized the style of his sponsor, Givenchy. 35 No matter how skilled a designer is, he would always pay homage to a distinguished tradition. Fashion revivals like the bell bottoms, hip hugging denims, puffed shoulders, frayed jeans, cargo pants etc. attracting unimaginative following even years later are an illustration of fashion being reborn from the past. Even when Protgs enter the industry, they maintain their patrons theme to an extent before they can establish their own place in the giant fashion milieu. For example, fashion genius Thomas Burberry invented a breathable, weather proof and tear proof fabric called gabardine to use in Trench Coats. 36 Used initially for making garments for explorers, mountaineers and army officers, it witnessed phenomenal success over the past few decades. The trench was copied by designers around the world. But the Burberry Trench has until now maintained its vogue and class.

34

David Bollier and Laurie Racine, Ready To Share: Creativity In Fashion & Digital Culture presented at a Norman Lear Center Conference on January 29, 2005 available at http://www.learcenter.org/pdf/rtsbollierracine.pdf 35 Ibid. 36 Story of the Trench available at http://uk.burberry.com/

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Candidate Number: QJFB8

Simon considers this disposition to be inevitable and reveals that, in the fashion world, young designers are rediscovering the early renegade work of Vivienne Westwood, whose collection drew inspiration from pirates, peasants and American Indians. 37 Clearly, inspite of severe free-riding, the fashion cycle never stops. 3. COMPARISON OF PROTECTION UNDER US AND EU IP-REGIME 3.1 United States The United States Copyright Act of 1976 has an exhaustive list of works to which copyright protection is granted and fashion designs are explicitly not covered under its umbrella. It gives copyright protection to original 38 works of authorship. 39 The Supreme Court of the United States has explained: The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in Science and useful Arts. 40 Thus, the designers have been compelling the Congress to afford protection to apparel designs under 17 U.S.C 102(5) i.e. in the category of pictorial, graphic, and sculptural works. However, there is a statutory limitation attached to this clause which states that

Simon Reynolds, The 70's Are So 90's. The 80's Are The Thing Now, The New York Times, May 5, 2002. 38 U.S.C. does not define the term original. However, the standard is not a difficult one to meet as explained in the famous case of Feist Publications, Inc., v Rural Telephone Service Co., 499 U.S. 340 [1991]. 39 17 U.S.C.102 enumerating an exhaustive list of works afforded protection : Literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. 40 Mazer v Stein 347 U.S. 201, 219 [1954].

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the design of a useful article, as defined in this section, shall be considered a pictorial, graphic or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. 41 Thus evidently, the law in US does not protect the functional elements of an article. A design with a utilitarian function must stand the test of Separability to qualify for protection. The test of Separability was developed in the landmark case of Mazer v Stein. 42 The Court ruled that Balinese statuettes forming the stand for the lamps were copyrightable. The Court reasoned that the aesthetic work could be separated from the useful article (the lamp) in this case. The Supreme Court then classified Separability into Physical and Conceptual. The test of Physical Separability is used to separate the aesthetic elements of a design from the functional ones. Conceptual Separability on the other hand means that the pictorial, graphic, or sculptural features i.e., the artistic facets can be imagined separately and independently from the useful article without destroying the basic shape of the useful article. 43 While Physical Separability is a simple concept, the doctrine of Conceptual Similarity has been applied in a complex fashion by the judiciary. Using these concepts, Courts have long held that clothes, as useful articles, are not copyrightable. 44 3.1.1 Conceptual Separability Doctrine fails to include fashion designs in its scope. The Copyright Office and the courts have constantly held the belief in their judgements and legislation, that the primary function or the ultimate use of fashion is Utilitarian.45

17 U.S.C.101 347 U.S. 201 [1954]. 43 Whimsicality, Inc v Rubies Costume Co., 891 F. 2d 452 [1989] - Where based on the utilitarian function theory, Halloween costumes were not awarded protection. The Court rejected the assertion that a costumes utility of allowing its wearer to portray an animal did not make them useful articles. 44 Ibid. 45 Safia A. Nurbhai, Style Piracy Revisited, 10 J.L. & Pol'y 489 (2001-2002).
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Automobiles, apparel, furniture, etc. - no matter how attractive the appearance, will not qualify for copyright protection based on the utilitarian doctrine. Only in the rarest cases garments are accorded copyrights. For example, fabric designs, patterns for knit sweaters, designs printed on dresses and lace designs on wedding gowns have been held to constitute copyrightable subject matter. 46 The case of Kieselstein-Cord v Accessories by Pearl, Inc., 47 is an interesting example where the Court observed that the primary ornamental aspects of the buckles were conceptually separable from their subsidiary utilitarian function. The plaintiff, Barry Kieselstein-Cord, a famous modern jewellery designer and photographer as well as a member of the Council of Fashion Designers of America based his design of the

Vaquero buckle on Spanish art nouveau architecture. His

Figure 1

design for the Winchester buckle was inspired by the rifle of the same name. As can be seen from the two images on the right and as the Court rightly observed, these are not ordinary buckles; they are sculptured designs cast in precious metal-decorative in nature and used as jewellery, principally as ornamentation. 48 However, the knockoff buckles were made of common metal. This explanation may lead us to a conclusion that apparel can be considered to be wearable art since articles produced by high end designers are both exquisite and decorative. Unfortunately, the criterion is a difficult one to meet.

Christine Cox and Jennifer Jenkins, Between the Seams, A Fertile Common: An overview of the Relationship Between Fashion and Intellectual Property presented at A Norman Lear Conference on Jan 29, 2005 available at http://learcenter.tempdomainname.com/pdf/RTSJenkinsCox.pdf 47 632 F.2d 989 [1980] and Figure 1-images from http://www.coolcopyright.com/cases/chp4/kieselsteinpearl.htm 48 Ibid p. 990.

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In another interesting case 49, it was held that the design elements were conceptually separable from the utilitarian elements and that the design elements were not designed to optimize their function as clothing, and protection was awarded. Also, a clear plastic swimsuit containing crushed rock in a distinct colour and demonstrated as modern art at a museum has been held to be copyrightable. 50 In a more recent judgement 51 in the year 2004, protection was granted to the design of a mannequin head as its artistic features were not considered to be utilitarian. It was observed that If the elements do reflect the independent, artistic judgement of the designer, Conceptual Separability exists. Conversely, when the design of a useful article is as much the result of utilitarian pressures as aesthetic choices, the useful and aesthetic elements are not conceptually separable. 52 Supporters of copyright protection for fashion designs believe that its not the function but the appearance that gives apparel an economic value. Sometimes a scarf is worn not to keep you warm, but for the statement its unique style would make in a social gathering. However, fact remains that there is very little protection available to fashion designs by way of copyright. Even though Conceptual Separability provides for clothing design protection, but the limited nature of its scope, as discussed above, makes it less worthwhile for designers. It is a difficult task to demarcate a line between the aesthetic and functional elements of a clothing design since most often the expressive components are fused into the garment itself. This deficiency in the legal backdrop leaves apparel designs in a
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National Theme Production, Inc v Jerry B. Beck, Inc., 696 F. Supp. 1348 [S.D. Cal. 1988]. Note: on the copyright application it clearly stated, No claim is made on the designs of clothing, but in designs of artwork on clothing. 50 Gregory Poe v Missing Persons, 745 F.2d 1238 [9th cir. 1984]. 51 Pivot Point Int'l, Inc. v. Charlene Prods. Inc., 372 F.3d 913 [7th Cir. 2004]. 52 Ibid.

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copyright-free circuit. As a result, designers turn to Design Patents and other IP routes in order to seek protection for their creations. 3.1.2 Lacuna in other IP laws to afford protection to fashion designs Design Patents: The US Patent Law provides protection for new and useful processes, machines, products and compositions of matter through utility patents. 53 Also, 171 of the Statute lays down that, Whoever invents any new, original and ornamental design for an article of manufacture may obtain a patent, subject to the conditions and requirements of this title. 54 Thus, design patents encompass the ornamental portions of an invention offering them a fourteen-year term protection. 55 In order to be protected by a design patent, however, an article must comply with the patent statute requirements of being novel, ornamental, and non-obvious to anyone skilled in that art. 56 Garment designs have been held not to meet these requirements. 57 Firstly, it is difficult to distinguish clothing designs from one another as well as prior garment designs. Secondly, ornamental features fail to pass the test of Conceptual Similarity like in the case of Copyrights. Even if they do meet these requirements, the patent process is often a lengthy, expensive and impractical alternative. 58 It might prove to be an inconvenient vehicle for protection for the fashion houses given the swiftness of current fashion cycles. Thus, design patents prove to be a misfit and a less advantageous tool for protecting fashion designs.

35 U.S.C.101 (2001). 35 U.S.C.171 (2001). 55 35 U.S.C.173 (2001). 56 Gold Seal Imps. v Morris White Fashions, Inc., 124 F.2d 141, 142 [2d Cir. 1941] - denying a patent for handbag design, Court stated: it is not enough for patentability to show that a design is novel, ornamental and pleasing in appearance . . . it must be the product of invention; that is, the conception of the design must require some exceptional talent beyond the range of the ordinary designer familiar with the prior art. 57 White v Leanore Frocks, Inc., 120 F.2d 113 [2d Cir. 1941]; Neufeld-Furst & Co. v. Jay-Day Frocks Inc., 112 F.2d 715 [2d Cir. 1940]. 58 Lisa J. Hedrick, Tearing Fashion Design Protection Apart at the Seams, Washington and Lee Review, Vol. 65, No. 1, pp. 215-273 (2008) illustrating the time taken by examiners in reaching a decision on an application in 2006.
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Trademarks: Trademarks offer protection to the prestige of premium brands and act as an indicator of origin of products. A trademark is a word or name used in commerce by a person or business to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown. 59 Designers use it as a prime instrument to distinguish their designs using a trademarked logo. Trademarks for Hermes and Louis Vuitton are common on handbags; trademarks for Nike and Adidas are common on many sportswear items; GAP and Benetton can be seen on clothing, handbags and accessories. However, using the logo does not entail protection to the design in itself. 60 The LV mark is embossed on Louis Vuitton handbags so as to make it a key element of the design. However, its trademark infringement, dilution and unfair competition claims against Dooney & Bourke (who used a pattern of DB instead of LV) failed to its dismay. 61 Distinctiveness being the fundamental requisite to obtain trademark protection, fashion designs must show some breakthrough distinctiveness in order to be recognized as a trademark. Even though it is possible for the public to identify and acknowledge a distinctive trend, but it is not certain if it would associate it to a specific manufacturer. Any possible trademark protection would have to be based on a distinct, individual design. 62 Thus designs again end up falling in the ready-to-share zone. Also the fact that people do not like to have a trademark symbol on the garment itself further weakens the scope of trademark protection to designs. Where logos on certain clothes like denims or t-shirts

15 U.S.C1127 (2000) Beverly W. Pattishall, Trademarks and Unfair Competition 4 (2005). 61 340 F. Supp. 2d 415, 452 [S.D.N.Y. 2004] 62 A Bill to Provide Protection for Fashion Design: Hearings before the House Subcommittee on Courts, the Internet, and Intellectual Property, 109th Cong., 2nd sess. (2006) A hearing was held on H.R. 5055 and the Council of Fashion Designers Of America specifically did not want the proposed bill to protect trends.
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Candidate Number: QJFB8

would be a status statement, patterns of trademark on a gown, for example, would completely ruin its appeal. Therefore, protecting fashion design through trademark law would appear to be a poor solution. Trade Dress: Trade Dress protection has branched out of Trademark Law very recently. Trade Dress originally referred to the design of a products package, but its scope has considerably expanded and now it involves the total image of a product and may include features such as size, shape, colour or colour combinations, texture, graphics, or even particular sales techniques. 63 Law forbids the use of any similar trade dress that is likely to cause confusion, mistake or deception. 64 The registration is optional and hence, many trade dresses remain unregistered. Walmart Stores, Inc v. Samara Brothers, Inc 65 is a landmark judgement delivered by the Supreme Court involving childrens outfits. The trade dress protection was refused and the Court stated that protection could only be extended if the garment designs had acquired secondary meaning as a trademark. The secondary meaning was held to be such that in the minds of the public, the primary significance of a product design is to identify the source of the product rather than the product itself. 66 But this again is a stiff criterion for apparels to meet. This is because the product designs can serve the purpose of making a garment more appealing but seldom can they act as an indicator of origin of the product. Similarly, Louis Vuitton was also refused trade dress protection in an infringement suit against Dooney and Bourke. 67

Two Pesos v Taco Cabana, 505 U.S. 763, 765 n.1 [1992]; John H. Harland Co. v. Clarke Checks, 711 F.2d 966, 980 [11th Cir. 1983]. 64 15 U.S.C.1125 (a) (2001) 65 529 U.S.205 [2000] 66 Ibid. 67 340 F. Supp. 2d 415, 452 [S.D.N.Y. 2004]

63

18

Candidate Number: QJFB8

Nonetheless, Trademark and Trade Dress protections remain the sole instruments that help the industry to survive whilst making profits in this ready to share environment. These tools also function as an indicator of quality giving designers a distinguished rapport in the market. They act as a link between the product and its source, thereby protecting the consumers against piracy. In fact, many fashion designers already use trademark law to protect their goods. They benefit established brands which are able to claim protections, atleast, against counterfeit products imitating their brand names or logos. 3.2 European Union On the other side of the Atlantic, a systematic design protection mechanism operates in the European Union. The European Community Design Protection Regulation, which became directly applicable in all Member States on March 6, 2002 created a unified design protection system within the European Union. 68 Under the Regulation, design is defined as the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation. 69 Novelty and individual character are the only two requisites for a design to qualify for protection. 70 On the other hand, American legislation is quite unclear about the definition but specifies that it should not be closely and substantially similar in overall visual appearance to a protected design. 71 The

Council Regulation (EC) No. 6/2002 of 12 December 2001 O.J. (L 3, 5.1.2002, p. 1), amended by Council Regulation (EC) No. 1891/2006 of 18 December 2006 O.J. (L 386, 29.12.2006, p.14). 69 Council Regulation (EC) No. 6/2002, 2001 on Community Designs art. 3(a). 70 Art. 4, Council Regulation 6/2002, 2001 O.J. (L 3) 4 (EC) -A design shall be protected by a Community design to the extent that it is new and has individual character. 71 17 U.S.C 1309 (e) INFRINGING ARTICLE DEFINED - an infringing article is any article the design of which has been copied from a design protected under this chapter, without the consent of the owner of the protected design. An infringing article is not an illustration or picture of a protected design in an advertisement, book, periodical, newspaper, photograph, broadcast, motion picture, or similar medium. A design shall not be deemed to have been copied from a protected design if it is original and not substantially similar in appearance to a protected design.

68

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Candidate Number: QJFB8

assessment of novelty 72 under the Community Design System is different from the novelty standard used in patent protection but is analogous to the originality requirement propounded by the US Design Piracy Bills. 73 The individual character requirement under the Regulation specifies, A design shall be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public. 74 Basically, the Regulation has created a two-fold protection system: first, through the automatic creation of the unregistered community design (UCD) from first disclosure of the design in the community and second, the protection of a registered community design (RCD) through registration at the Office for Harmonization in the Internal Market in Alicante (OHIM). 75 Applying for a RCD is affordable and simple since one application with the appropriate fee to OHIM is enough in order to gain EU wide protection. 76 The Regulation has set the same criteria to qualify for protection for Unregistered Designs. 77 The term of protection is only three years (compared to a maximum of twenty-five years protection for registered designs) starting from the date on which, the design is first made

Council Regulation (EC) No. 6/2002, 2001 on Community Designs art. 5 -A design shall be considered to be new if no identical design has been made available to the public. 73 A design is original if it is the result of the designer's creative endeavour that provides a distinguishable variation over prior work pertaining to similar articles which is more than merely trivial and has not been copied from another source. 74 Council Regulation (EC) No. 6/2002, 2001 on Community Designs art. 6- In assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration. 75 www.oami.europa.eu 76 Office for Harmonization in the Internal Market, The Community Design, Frequently Asked Questions on the Community design, Q 3.1 http://oami.europa.eu/ows/rw/pages/RCD/FAQ/RCD3.en.do -In the case of a single application (one design) where no request for deferment is made, the applicant will need to pay a registration fee of 230 and a publication fee of 120, which totals 350. 77 Council Regulation (EC) No. 6/2002, 2001 on Community Designs art. 11A design which meets the requirements under Section 1 shall be protected by an unregistered Community design for a period of three years as from the date on which the design was first made available to the public within the Community.

72

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Candidate Number: QJFB8

available to the public in any country in Europe. 78 It is a useful tool in the hands of the designers since they can do away with the formalities and the expenses of registering their designs before their articles are offered for sale in the markets. This is advantageous because the fashion cycles have become considerably smaller in the past few decades. It seems to be the most realistic sort of protection when it comes to the fashion world. Sadly, there is no such shield under the proposed US Design Piracy Bills as we will see further. The effect of registered Community design is that it shall grant an exclusive right to the holder to use the design and also to prevent its unauthorized use. 79 On the contrary, unregistered designs will confer the same rights only if a protected design is copied. 80 This implies that an action cannot be brought against a person who created the alleged infringing design without any knowledge of the protected design. 81 Coming to the similarities between the two legal regimes, the Community design system allows for fair use exceptions to infringement for non commercial, educational, and experimental purposes. 82 Similar provisions are found under the US copyright Law under the Fair-Use exceptions. 83 In order to secure protection, litigants need to prove registration under both the systems. 84 Unregistered users can seldom bring an action under

Ibid. See also Council Regulation (EC) No. 6/2002, 2001 on Community Designs art. 12 explaining the term of protection. 79 Ibid Art. 19 explaining the term use as the making, offering, putting on the market, importing, exporting or using of a product in which the design is incorporated or to which it is applied, or stocking such a product for those purposes. 80 Ibid. 81 Ibid. 82 Ibid Art 20 explaining the Limitation of the rights conferred by a Community design. 83 17 U.S.C. 107 Limitations on exclusive rights: Fair use - The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. 84 17 U.S.C. 408(a) makes registration optional under the US Copyright Law. However, 17 U.S.C 410(c) provides that in any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.

78

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Candidate Number: QJFB8

Copyright. 85 For unregistered Community Design Protection, as stated earlier, they would have to prove that the article meets the requisite criteria for protection. Inspite of the similarities stated hereinabove, below is a thumbnail guide to the vital differences between the two protection systems. An outstanding feature of the Community Design system not present in the US Copyright Law is the grace period given to a designer for registration. 86 This implies that a designer can secure his design even before its creation. A designer can request a publication delay for up to thirty months in order to finish the design or to ward off competition while the final product is put together. 87 Secondly, designs that are against public policy or accepted principles of morality are specifically not afforded protection under the Community Design System. 88 This provision is not to be found in the US Copyright Law. It would basically leave an examiner with discretion to maintain the validity of a design and add an extra qualitative factor to the requirements of registration. For example if Richard Tyler wanted to register in the EU his Dress that Toni Braxton wore to the 43rd Grammy Awards 89, which was in limelight for being extremely provocative; registration could have been denied because it was against public policy or morality.

17 U.S.C. 411 (Except [for certain actions] no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.). 86 Council Regulation (EC) No. 6/2002, 2001 on Community Designs art. 50. 87 Office for Harmonization in the Internal Market, The Community Design-Frequently Asked Questions on the Community design, Question 5.2 available at http://oami.europa.eu/ows/rw/pages/RCD/FAQ/RCD5.en.do#200 - This period of confidentiality allows the applicant an opportunity to further develop his marketing strategy or to finalise the preparations for production without competitors being aware of his design. 88 Council Regulation (EC) No. 6/2002, 2001 on Community Designs art. 9. 89 5 Grammy Dresses Youll Never Forget posted at http://www.glamourvanity.com/spotlight/5-grammysdresses-youll-never-forget/ on Feb 3rd, 2009.

85

22

Candidate Number: QJFB8

Very recently, a successor of the Design Piracy Prohibition Acts, which were introduced earlier in two sessions of Congress in US and in the House in 2009, has been put forward. It is supported by the Council of Fashion Designers of America and the American Apparel and Footwear Association who initially had some issues with this piece of Legislation. 3.3 Proposed Protection by Schumer and its possible effects On August 5, 2010, The New York Times announced that Senator Charles Schumer (D-NY) has introduced the Innovative Design Protection and Piracy Prevention Act (S. 3728), which will offer intellectual property protection to unique and original fashion designs. 90 The legislation is believed to benefit the American designers and safeguard the consumers against apparel design piracy. According to the Press Release, the new bill would guarantee a short, three-year term of protection to new and original fashion designs, while leaving every design ever created prior to enactment of the bill in the public domain. Only deliberate copies that are substantially identical to protected designs will be prohibited by law, and neither consumers nor retailers will be liable for buying or selling illegal copies. There is no registration requirement unlike the previous Design Piracy Bills. An exception for home sewers who will be permitted to copy a protected design for personal use or the use of a family member, also finds place in this new piece of legislation. In particular, the plaintiff will have to plead specific facts establishing that he has a case. If a dispute does arise, a defendant will be entitled to show that the design in question was created separately and independently from the protected design or that it was copied from a design already in the public domain.

90

Cathy Horyn, Schumer Bill Seeks To Protect Fashion Design, New York Times Press Release, August 5, 2010.

23

Candidate Number: QJFB8

The legislation like its previous counterparts seems far from perfect. If it does become an Act, the cost of surviving in the fashion industry is sure to shoot up. The former copyists will have to enter into licensing agreements with contractors and retailers. Apart from that, hiring an attorney, searching for design registrations in the database and having an InHouse legal department to draft contracts for transfer of ownership etc. will cost a fortune. The paper on Piracy Paradox clearly examined how a Design Piracy Protection Bill, if passed, could be of detriment to the fashion world. The law could throw 90% of the designers out of business. 91 This legislation does not seem to be a good alternative either since it hinders competition and is akin to democracy. Also, protection is offered in the US to a completely novel design in the form of a patent protection. And if Schumers Bill turns into legislation, the judiciary would take over the task of Federal Agencies validating the novelty of a design. The judges quite often inexperienced and ignorant about the fashion world would make the Bill a cure worse than the illness. Furthermore, the design would have to be reproduced exactly as sketched. No alterations would be allowed. New costs would be added if a designer wants to redo the style to fix the appeal of his garment. The retail sector would have to face a considerable breakdown with diminished competition and suppressed innovation. Instead of benefitting the consumers, the legislation is likely to create a monopolistic market for a few big fashion companies who could then protect their design-integrity. However, as far as the young designers and the young talent go, the legislation is quite likely to subvert their growth and development. It would bankrupt their limited resources.
91

Kathleen Fasanella, Proposed Law to destroy 90% of design business, posted at Fashion-Incubator: Lessons from the sustainable factory floor available at http://www.fashion-incubator.com/archive/proposedlaw-to-destroy-90-of-design-businesses/

24

Candidate Number: QJFB8

The expected and unexpected whirlpool of designs blossoming in the fashion world, continuously evolving fashion and fads, and a flexible market flooded with young and skilled artists make this industry dynamic and vibrant, where nothing is fixed and no style is everlasting. Infact, in a recent Runway robbery, Diane von Furstenberg was caught knocking off a jacket design (as depicted by the images on the left) of a Toronto based designer by the name Mercy 92. What is hard to believe is the fact that designer Diane Von Furstenberg is the
Figure 2 (Left: Spring 2009 Diane von Furstenberg; Right: Spring 2008 by Mercy)

president

of

the

Council

of

Fashion Designers of America and

a strong proponent of the Design Piracy Bills. This is only one of the million examples of copying in this industry. But, a stricter threshold would only make this industry less proficient. This can be proven by examining the weaknesses in the protections offered in the EU as follows:Currently, there are three different routes a designer can take to secure his Design rights. 93 Individual registration in each Member State within the EU; Filing a single application with WIPO under the international system of the Hague Agreement administered by the World Intellectual Property Organization (WIPO) and designating the number of countries protection is sought for; or
Nathalie Atkinson(Blogger and Journalist), Copycats: A Tale of Two Jackets, posted at National Post Online in april 2009 available at http://network.nationalpost.com/np/blogs/theampersand/archive/2009/04/23/copycat-style.aspx 93 How to Protect Your Design in the European Union, International Council of Societies of Industrial Design available at http://www.icsid.org/resources/case_studies/articles49.htm (The Hague Agreement currently only applies to Germany, Belgium, Spain, France, Greece, Italy, Luxembourg, the Netherlands, Estonia, Latvia, Slovenia and Hungary plus certain other non-EU countries, in total 42 countries).
92

25

Candidate Number: QJFB8

Community Design Protection as one stop route to design protection throughout the EU. As stated earlier, the two requisites for a design to qualify for protection under the Community Design System are that it should have an individual character and should not be copied from any other design. However, it does not serve as a strong barrier. 94 Reason being that the applications made to OHIM are not put under solid scrutiny but are only checked for formal compliances and morality requirements. On analyzing a few designs registered under the Community Design, this becomes more evident.

Figure 3

For example, Puma has 38 designs registered with OHIM under Locarno Classification 02 over a period of three years. 95 Even without a closer inspection of the two designs registered by PUMA in the figures 96 above, the resemblance becomes clearly noticeable. The two designs are different from each other only as far as their colours are concerned. On comparison, most of their other designs manifest the presence of only slight variations

Office for Harmonization in the Internal Market, The Community Design-Frequently Asked Questions on the Community design, Question 5.2 available at http://oami.europa.eu/ows/rw/pages/RCD/FAQ/RCD5.en.do#200 95 http://oami.europa.eu/RCDOnline/RequestManager# 96 RCD-ONLINE - Design consultation service Design number 000081252-0001 and 000081252-0002 available at http://oami.europa.eu/RCDOnline/RequestManager#

94

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Candidate Number: QJFB8

such as colour, different style of patches, length or size, fabric etc. If registration under Community Design Registration was a measure of success, there would have been an immense increase in the number of registrations. However, surprisingly we find that many design firms like Gucci, Raplh Lauren, and Chanel have simply registered a few accessory items like handbags, watches etc. but apparently no clothing designs. Thus, registration of these substantially similar designs only indicates the ineffectiveness of the protection yardstick. It also implies that as long as a design is not an identical copy, it would be considered novel and legal. 97 Moreover, the Innovative Design Protection & Piracy Prevention Act includes procedural provisions to discourage frivolous litigation. But just because the Bill is limited, doesnt mean there would be no lawsuits. In the year 2008, there were only three judgements concerning Community Designs before the Courts. 98 This could superficially lead the proponents of the Design Piracy Bill in the US to believe that enhanced protection would lead to minimal litigation. 99 Much to their dismay this would not be the case. Firstly, the number of infringement actions does not serve as a good index because it does not consider the out-of-court settlements and alternative methods of dispute resolution. Monsoon made an out-of-court settlement with Primark in 2004, for approx. 23000 pounds. Next year, it filed another suit for infringement against Primark- this time for 6 different garments. However, Primark bailed out and withdrew those garments from its

Lisa J. Hedrick, Tearing Fashion Design Protection Apart at the Seams, Washington and Lee Review, Vol. 65, No. 1, pp. 215-273 (2008). 98 See Office for Harmonization in the internal market listing the Judgements of Community Design Courts concerning Community Designs available at http://oami.europa.eu/en/design/aspects/cdcourt.htm 99 A Bill to Provide Protection for Fashion Design: Hearing on H.R. 5055 Before the Subcommittee on Courts, the Internet, and Intellectual Property of the H. Comm. on the Judiciary, 109th Cong. 2 (2006) available at http://judiciary.house.gov/media/pdfs/printers/109th/28908.pdf

97

27

Candidate Number: QJFB8

stores. Yet another lawsuit was filed against Primark. H&M alleged infringement but eventually they had an out-of court settlement. 100 Secondly, it could be assumed that there is a reduction in copying on account of the effective protection afforded by the Community Design System but there is abundant evidence of copying in the industry. 101 Thirdly, it might well be an indicator of the designers being satisfied with the current regime of design safeguards and the realities of imitating and reproducing designs. Additionally, US being a highly litigious society, there is a strong likelihood of American Courts being flooded with meaningless cases. The lack of clear legislation coupled with innumerable lawsuits is quite unlikely to drive the innovation wheel in the fashion industry. Further, litigation could be an expensive affair for some designers. It would unnecessarily increase the costs to protect clothing designs having a short shelf life. Based on a cross jurisdictional observation, it is inconceivable that the new Bill could have a positive effect on the Fashion industrys attitude. Fashion Designs clearly do not fit under the law surrounding pictorial, graphic, and sculptural works. Fathomless doctrines like Conceptual Separability would lead to ambiguous litigation. Furthermore, the onesize-fits-all approach to copyright duration would hardly be able to protect any design. Everything already in the public domain would clearly fall outside the scope of protection. Although an authoritative assessment is difficult to make, however, on consideration of the design protection offered in both the Continents, the failure of designers to register their designs including some major labels, the number of lawsuits actually filed in the EU,

100 101

http://www.fashionunited.co.uk/news/primark.htm Ibid.

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Candidate Number: QJFB8

and the fear of material losses in frivolous litigation, the US copyright system identifies enough complications to hinder it from moving on forward with the proposed Bill. 4. IS FASHION AN EXCEPTION OR SHOULD IT BE THE RULE? Imagination is imperative to endure the fashion world but at the same time it is too colossal and agile for anyone to own. Even if protection is granted to fashion designs, it would be highly unpopular amongst the fashion designers or rarely enforced. Other innovative industries like music and film value ownership of creativity and profitability as supreme. It is argued that the exclusive right to a piece of work acts as a catalyst to spur innovation. The fashion industry does not reward the skilled and innovative artists in the same manner as artists in other creative realms. However, this defect in the legal backdrop does not mean that fashion artists go unappreciated. The lack of artificial protectionism pushes the designers to conceive innovative ideas and formulate new designs in order to ward off competition. The desire to stay ahead in the race boosts originality and experimentation. The primary object of Intellectual Property Laws is to create incentives. 102 If the fashion industry is already flooded with new creations, there appears to be no need to add more incentives. Fashion operates in a negative-space 103 and it thrives only because it is free from the fetters of a controlled legislative climate. If fashion is going to be culturally relevant, it must be constantly on the move, and no one can be allowed to own it. 104 As

Stanley M. Besen and Leo J. Raskind, An Introduction to the Law and Economics of Intellectual Property, The Journal of Economic Perspectives, Vol. 5, Issue 1 (1991). 103 Kal Raustiala and Christopher Jon Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, Virginia Law Review, Vol. 92, 2006, p. 1687. 104 David Bollier And Laurie Racine, Ready To Share: Creativity In Fashion & Digital Culture, presented on January 29, 2005 at a Norman Lear Center Conference available at http://www.learcenter.org/pdf/rtsbollierracine.pdf

102

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Candidate Number: QJFB8

Salvador Dal 105 believed, Those who do not imitate do not create anything new. The apparel market is a complex phenomenon and therefore, stringent controls are infeasible and impractical. Other industries with enormous IP safeguards can surely follow the footsteps of this multibillion dollar industry. Globalisation coupled with the dawn of technological breakthroughs has remarkably reduced the physical boundaries between any two States, making them almost negligible. Books, Music and Software industries are certain creative realms where the dynamics of the fashion industry can be applied for optimal levels of protection in the future. Music Aram Sinnreich and Marissa Gluck in a recently held conference illustrated how the music industry could follow suit and adopt thinner copyright protections like the fashion industry. They say that, Fashion provides a promising, if imperfect, blueprint for the job. 106 The case of DJ Z-Trip, best known as the pioneer of the mash-up movement is an interesting example of the piracy paradox in the music world. Mash-up is a song composed by blending two or more pre-recorded songs. This is done by combining the vocal tracks of one song over the instrumental track of another. In his blog 107, DJ Z-Trip describes how it is a favourable scenario for the original as well as the mash-up artists. Both parties are stoked, he adds. This happens due to the phenomena of comparative advantage. But unfortunately, such creative industries are pitted against strenuous legal constraints and enormous power struggle, thereby hampering the creative class i.e. the real
Dal, The Secret Life of Salvador Dal, (London: Vision Press, 1948) - Salvador Dali was a prominent Spanish surrealist painter in the 20th century. 106 Aram Sinnreich and Marissa Gluck, Music & Fashion: The Balancing Act Between Creativity and Control presented at A Norman Lear Letter Conference on Jan 29, 2005 available at http://www.learcenter.org/pdf/RTSSinnreichGluck.pdf 107 Official Blog DJ Z-Trip available at http://forums.djztrip.com/showthread.php?t=18798
105

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Candidate Number: QJFB8

artists. 108 Creativity must be given space to breathe in order that the industries can work effectively. Over the decades, music has been redefined and the industry is flooded with synthetic music springing from recombinations and remixes. With the advent of the digital technology, music is no longer fettered. And this revolution that has undermined the idea/expression dichotomy specifically calls for a revival of the traditional IP regime in the music industry. Sooner or later, the stringent controls of IP over musicians, composers, and listeners would stifle creativity and create a deadlock in the industry. In order to rule out such possibilities, Music Labels and Publishers would have to come forward and renew the business models, be tolerant towards e-sharing and adopt a flexible approach rather than being bound by the strict enforcements of Intellectual Property Rights. Fashion Industry has balanced the free-wheeling spirit of the creatives in a profitable fashion. There is no reason why we should be over-protective about the music industry. Books To begin with, the newspaper world has a short life-cycle and a million copies are printed on a daily basis. Yet the industry runs free from any imposed restrictions on the content that is published. The story of this industry seems quite similar to that of fashion, where designs are produced and trends are changed relentlessly. There is an interesting lesson to be learnt by the authors in order to sustain them in a market with free competition. Authors can create a situation of a perfect bargain, if they let the newspapers print selective Chapters of their book. Printing agencies can benefit by publishing without worrying about IP- enforcement in general and royalties in particular. A free and competitive market will encourage innovation. Authors would receive their compensation from the newspaper
108

Supra note 110 at pg 16.[music and fashion]

31

Candidate Number: QJFB8

agencies. And readers would benefit by reading the few chapters in the newspaper and ultimately buying the book if they so desire. It is argued that IP protection has always been biased in favour of giant Corporations and publishers. They have always dictated control over the market. They have had the money and the power to defend their rights unlike the original artists. A low IP- equilibrium would be beneficial for the latter without hampering the drive to create. A good example is Internet where authors voluntarily upload articles everyday without demanding any IP Rights. At the end of the day, every individual can figure out the key to survival. Software Let us start with a basic reasoning. Information cannot be regarded as property and hence, should not be afforded IP protection. For e.g. A has a pen. When he gives that pen to B, he loses the pen and any rights over it. However, when A has some software and B asks for it, A can merely copy it as a digital file and give it to B, without having to part with his own software. The software industry has thrived without IP protections until recently when Patent Law started to apply to Computing. The industry is largely dominated by large Corporations who are now chasing individual programmer, bringing legal actions against them and claiming ownerships. The industry would not come to an end without robust protection. However, it is strongly pressing for a tailor-made protection. There are three alternatives to the Software Industry which can provide for its sustenance in the absence of strong IP Regulations. 109 The software that is produced could be modelled in such a manner that it works only if the customer pays a fee to obtain permission to use it e.g. Microsoft Office. In the second scenario, it could be free for customers to use, if advertisers are willing to back them up. For example, Google's revenue is principally

109

A World Without Intellectual Property, The Mises Community, available at www.mises.org

32

Candidate Number: QJFB8

derived from its online advertising programs. 110 A third alternative could be the use of open-source software without any licensing restrictions, where the users can freely edit or modify the software as per their requirements, whilst maintaining its openness e.g. Linux Operating Systems. The drive behind the creation of such software is usually ubuntu rather than economical. Consultancy and support system services could provide this industry with feasible avenues for money-making. Also there could be free-to-use software where some additional features are enabled with a paid license. The open source software functions quite like the fashion industry surviving with almost negligible IP Rights. It is difficult to imagine a world without Intellectual Property. But it is time to take a fresh perspective at all the industries. It is time to analyse the different levels of IP protection needed in various industries rather than following the on-size-fits-all approach. As stated earlier, the practices of imitation and reproduction are considered indispensable in the fashion industry. However, in other creative realms like music and film industry such acts are regarded as scabrous piracy. In the event of wide scale impersonation, it becomes close to impossible to differentiate between an original and a knock-off. Although, it is conceivable in theory- Copyright law extending protection to expression and not ideas- but in reality they are inseparable. Some prototype designs like a black cocktail dress are immortal and therefore are going to remain amenable to contemporary adaptation. 5. CONCLUSION The deregulation of autocratic regimes in the past, the process of economic liberalisation, and the elimination of trade barriers has certainly seen some constructive effects on the market. Adam Smith established the importance of free trade centuries ago. After numerous conflicts with the protectionists and the communists, policies of liberalisation
Google Annual Report for the year 2007 available at http://www.sec.gov/Archives/edgar/data/1288776/000119312508032690/d10k.htm
110

33

Candidate Number: QJFB8

finally triumphed and paved way for spurring international trade. The logistics of successful liberalisation can be applied to the world of fashion and it can be argued that a free creative culture would reward the artists and the society in an improved manner. First Mover advantage and Comparative advantage would continue to provide a substantial drive in artists who would continue to create and find new alternatives of making money. Innovation and IP laws seem to have a negative correlation ever since they have been introduced. This holds true for various industries like agriculture, the software industry, the microprocessor industry, etc. Had IP rights been a sine qua non for originality and inventiveness, the fashion industry in Europe would have prospered, and that in US would have suffered a breakdown. On the other hand, both the systems encompass a lively imitation process which is a drive for this dynamic and competitive market. Considering the given scenario, and weighing the costs of protection against the possible returns, I think the status quo in the fashion industry should be maintained, rather than extending protection which cannot be as advantageous as it currently is in the film and music industry. The industry is surviving on an understanding prevalent between the various market participants. Be it the high-end designers or young artists; the retailers or the consumers everyone enjoys their share of the cake in this massive pool of creations. Creativity, mostly, being a process of evolution, renders owning it undesirable and hence no protection serves us better than ineffective protection. It could endanger our cultural wealth. It is true that man created for the human race way before IP Rights were introduced centuries ago. Even if these rights are withdrawn, he will continue to create. As Coco Chanel rightly puts it, Fashion should slip out of your hands. The very idea of

34

Candidate Number: QJFB8

protecting the seasonal arts is childish. One should not bother to protect that which dies the minute it is born. 111

WORD COUNT- 11,004

111

Edmonde Charles Roux, Chanel and Her World: Friends, Fashion and Fame (Vendome Press, March 2005).

35

Candidate Number: QJFB8

6. BIBLIOGRAPHY

Books Andrew Christie & Stephen Gare, Blackstones Statutes on Intellectual Property (Oxford University Press, 9th Edition) Beverly W. Pattishall, David C. Hillard and Joseph Nye Welch II, Trademarks and Unfair Competition 4 (Lexis Nexis, 2005) Dal, The Secret Life of Salvador Dal, (London: Vision Press, 1948) Edmonde Charles Roux, Chanel and Her World: Friends, Fashion and Fame (Vendome Press, March 2005) Iain Ellwood, The Essential Brand Book: Over 100 Techniques To Increase Brand Value (Kogan Page, 2002) Jacqueline C. Kent, Business Builders in Fashion (The Oliver Press, Inc., 2003), p.21 Mark Tungate, Fashion brands: Branding Style from Armani to Zara (Kogan Page Ltd., 2005) Steven D. Anderman, EC Competition Law and Intellectual Property Rights- The Regulation of Innovation (Oxford University Press, 1998) Teri Agins, End of Fashion: How Marketing Changed the Clothing Business Forever, (HarperCollins Publishers, 2000) Articles Aram Sinnreich and Marissa Gluck, Music & Fashion: The Balancing Act between Creativity and Control presented at A Norman Lear Letter Conference on Jan 29, 2005 available at http://www.learcenter.org/pdf/RTSSinnreichGluck.pdf Christine Cox and Jennifer Jenkins, Between the Seams, A Fertile Common: An overview of the Relationship between Fashion and Intellectual Property presented at A Norman Lear Conference on Jan 29, 2005 available at http://learcenter.tempdomainname.com/pdf/RTSJenkinsCox.pdf

36

Candidate Number: QJFB8

David Bollier and Laurie Racine, Ready To Share: Creativity In Fashion & Digital Culture presented at a Norman Lear Center Conference on January 29, 2005 available at http://www.learcenter.org/pdf/rtsbollierracine.pdf George B. Sproles, Analyzing Fashion Life Cycles: Principles and Perspectives, The Journal of Marketing Vol. 45, No. 4 (American Marketing Association, 1981), pp. 116124 Herbert Blumer, Fashion: From Class Differentiation to Collective Selection, Sociological Quarterly, Volume 10, Issue 3 (Blackwell Publishing on behalf of the Midwest Sociological Society, 1969), pp. 275-291 Jennifer Mencken, A design for the Copyright of Fashion, 1997 B.C. Intellectual Prop. & Tech. F. 121201 Jessica Litman, The Exclusive Right to Read, 13 Cardozo Arts & Ent. L.J. 29, 44-45 (1994). Kal Raustiala & Christopher Jon Sprigman, Fashion Victims: How Copyright Law Could Kill the Fashion Industry, New Republic Online, Aug.14, 2007 available at http://homepages.law.asu.edu/~dkarjala/Copyright/Raustilia&SprigmanCRKillsFashion(NewRepublic2007).htm Kal Raustiala and Christopher Jon Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, Virginia Law Review, Vol. 92, 2006 Lisa J. Hedrick, Tearing Fashion Design Protection Apart at the Seams, Washington and Lee Review, Vol. 65, No. 1, pp. 215-273 (2008) Safia A. Nurbhai, Style Piracy Revisited, 10 J.L. & Pol'y 489 (2001-2002) Samantha L. Hetherington, Fashion Runways Are No Longer the Public Domain: Applying the Common Law Right of Publicity to Haute Couture Fashion Design, 24 Hastings Comm. & Ent. L.J. 43 (2001-2002) Stanley M. Besen and Leo J. Raskind, An Introduction to the Law and Economics of Intellectual Property, The Journal of Economic Perspectives, Vol. 5, Issue 1 (1991) Internet Sources www.hm.com www.jstor.org www.news.bbc.co.uk www.hbswk.hbs.edu 37

Candidate Number: QJFB8

www.guardian.co.uk www.marieclaire.com www.wipo.int www.tobereport.com www.learcenter.org www.uk.burberry.com www.nytimes.com www.oami.europa.eu www.icsid.org www.judiciary.house.gov www.mises.org www.sec.gov www.forums.djztrip.com www.glamourvanity.com www.fashion-incubator.com www.network.nationalpost.com www.bc.edu

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