Copyrights and Patents in the Fashion Industry (and Others)

I recently watched the video presentation of Johanna Blakley who is involved with TED (a non-profit whose conferences unite the worlds of technology, entertainment, and design), and UCLA’s Norman Lear Center, which utilizes Entertainment as a lens through which to read world events and ideas, much as I use Fashion to do the same. I recommend you take a gander (it’s relatively short):

Blakley delves into a bit of the history of copyrights, but here is an excerpt directly from the official US Copyright website:

Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
• To reproduce the work in copies or phonorecords;
• To prepare derivative works based upon the work;
• To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
• To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audio­ visual works;
• To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audio­ visual work; and
• In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.
In addition, certain authors of works of visual art have the rights of attribu­tion and integrity as described in section 106A of the 1976 Copyright Act.

You might note that last sentence sounds like it might include fashion… but it doesn’t. Blakley explains that copyright protection is not afforded to a wide array of creative industries including food, perfume, hairstyling, furniture, and cars, among others. The reason for this oversight is that

…copyright protection for the designs of useful articles is extremely limited. The design of a useful article is protected under copyright “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.”

(Incidentally, that same page includes a somewhat odd but interesting, lengthy comparison between fashion design and boat building.)

So useful, functional articles may not be copyrighted. Blakely paraphrases more helpfully to call the excluded group utilitarian. Fashion is too utilitarian to be copyrighted, because everyone should have access to clothes. While in abstract theory that makes sense to me, this distinguishes fashion from art, a nebulous line. A notable exception is the zipper, the failed copyrighting of which you can read about here. What the article doesn’t mention is that patenting the zipper was only possible at all because it’s technically a machine and not strictly an article of clothing. The placement and artistic design incorporating zippers are another matter.

1917 Sundback patent for the "Separable Fastener"

And yet there are growing (though still alternative) factions within other industries that are technically applicable for copyright protection, but that choose to publicize and gift their ideas. My computer-saavy partner convinced me to give open source Ubuntu a try, and once installed on my little laptop (wiping out the familiar PC interface with more than a little trepidation), I admit I soon took pride in joining the freeware community and the cache it gave me among tech-savvy folk. There are extensive online forums with a never-ending supply of techies willing to sooth my freeware freakouts. Though Open Office is undeniably, perhaps irretrievably inferior to the Microsoft original, I find it inspiring that computer programmers are willing to invest their personal time and energy in developing these systems (most of which are far better than the Office knockoff).

The DIY movement shares this free information standpoint, in that sites like Instructables and Make Magazine offer step-by-step tutorials on how to build relatively complex-looking items your very own self, ranging from lights to tables to computers, to upholstery. Part of the appeal is that it’s anti-establishment, anti-consumerist (which the Fashion Industry is certainly not) ; part of the appeal is that you have more opportunities to customize your software / shelving unit / whatever. While these movements deliberately reject copyrights for their own projects, this returns me to the question: why should fashion design be copyrighted when it seems other creative industries can manage without?

Diane Von Furstenberg, president of the Council of Fashion Designers of America, wrote an impassioned editorial response to an LA Times opinion piece entitled “Fashion copyrights cut creativity: Trying to protect fashion designers from knockoffs would only harm the industry” in which the author postulates that “applying copyrights to apparel design would discourage the copying that actually promotes the sale of designer clothing.”

Part of the difficulty in determining whether fashion designers should be allowed to patent their designs is that the original purpose of U.S. government copyrighting is not to willfully deprive inventors of fame and money for their inventions, but to encourage innovation within the U.S. market. Chia-Yu Chang writes:

Innovation in the fashion designs has not suffered for 2 reasons: One, innovative fashion designs still commands very high premiums in the high-end market; and two, a design’s value drops precipitously after just one season. So, high-fashion designers can bring in sufficient profit from one design, but only for a very short period of time. They must continue to innovate to sustain the business. Protecting the less-valuable older designs is relatively unimportant.

She tempers this assertion by asking, but “what about protections for the young designer dreaming about establishing herself by innovating for the mid-end market, which commands lower premiums? What about the need of mid-end and low-end markets for innovative designs?”

The music industry’s battle with copyrighting has been in the spotlight ever since the internet was used in conjunction with programs like Napster, iTunes, and the soon to be defunct Songza that allow the instantaneous sharing/copying of music files. Blakley mentions that Charlie Parker invented beebop because he didn’t think it could be mimicked (or stolen) by white musicians. While I strongly believe artists should be compensated for their time, effort, and talent, I do think there’s something valuable in being able to test, sample, and share music without the fear of prosecution. The fashion industry somehow doesn’t get as much press (or respect) in its similar struggle, though it’s been an issue to those directly involved for decades. Way back in 1977, former Register of Copyrights Barbara Ringer stated that the issue of design protection was “one of the most significant and pressing items of unfinished business.” And the issue is still open.

From her own open source platform of complete internet lecture video footage, Johanna Blakey suggests using fashion as a model for an inter-disciplinary discussion about what needs protection, what needs to be in the public domain, and what will lead to the most innovative ideas. I still don’t have a clear answer. Do you?

Further Reading:

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2 Comments

  • Anne June 30, 2010 02.38 pm

    This is an excellent post!

    I teach an Intro to Fashion History class in which we always have a lengthy debate on this issue. The class is frequently split between both camps. The pro-patent/intellectual property students always discuss their future as designers and business people. The anti-patent/ intellectual property students always talk about styling and fashion innovations trickling upward or downward from celebrities/ designers to the masses. I plan to incorporate some of these sources into class!

     
  • Maggie August 02, 2010 02.40 pm

    Susan Scafidi, author of Who Owns Culture?: Appropriation and Authenticity in American Law, also has a fairly active blog documenting and discussing fashion copyright issues:

    http://counterfeitchic.com/

     

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