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Copyright Protection of Design in the US v Europe

Page history last edited by mastudillo 11 years, 7 months ago

 

Copyright Protection of Design in the US v. Europe 

 

A. Copyright protection of Designs

 

Why do we need any copyright protection for fashion designs?  To answer that question, one has to know the fashion industry and how it has evolved.  Within the last decade, the fashion industry has become one of the largest and most important industries in the world.  The fashion business is a billion dollar industry with no geographical boundaries.  Designers, retailers and consumers follow the game of international fashion. In the last years, the importance of the fashion industry and designers increased tremendously. Consumers are able to recognize the different styles of designers, designers have a special style and became distinctive.[1]

 

As early as 1977, design protection was recognized as "one of the most significant and pressing items of unfinished business" in the area of copyright law.[2] This issue remains unaddressed today, even though the need for revision is even more significant, because garment designs lie along the fringe area of creative expressions that exhibit the same qualities as protected matter.[3]

 

i. Title 17, Chapter 13 of the U.S.C.

 

In current copyright law of the United States, there is no prevention of copying of fashion designs.[4] Copyright may protect elements of a garment like the patterns or prints in their textiles or other materials, but garments and accessories themselves are usually considered functional and thus unprotected.[5]

 

To prevent counterfeit labels on garments, in most of the cases it is the trademark law that is used.  For example, a small boutique may not sell its clothes under the label of a famous fashion designer without permission.[6] However, trademark law would not prevent the boutique from copying a design by Chanel. Similarly, patent law provides only limited protection of fashion designs - design patent protection is available only for truly original designs and most fashion designs do not meet this standard.[7]

 

Title 17, Chapter 13 of the United States Code regulates copyright protection of original designs. Original designs are protected under this chapter, however, section 1302 clearly states that “designs are not subject to copyright protection ”. The fashion design does not receive copyright protection if it is “embodied in a useful article that was made public by the designer or owner in the United States of a foreign country more than 3 months before the date or the application for registration” under the Act.[8] Under Section 1309 of Title 17, infringement, the Act provides that in the case of a fashion design, "a design shall not be deemed to have been copied from a protected design if it is original and not closely and substantially similar in overall visual appearance to a protected design."[9]  The wording of this provision would likely raise more questions and bring forth more debate on what constitutes copyright infringement of a fashion design.  As discussed below, copyright protection of fashion designs under French law is clear - fashion designs have copyright protection under the law,and infringement includes reproduction, adaptation, and translation of the fashion design, among other acts. One significant drawback to U.S. statute is the "closely and substantially similar" standard to determine whether a fashion design has been copied. This standard would give infringers much room for debate on whether the alleged article is a copy of the fashion design in issue.  Thus, legislators should reconsider whether to include specific language on what constitutes a closely or substantially similar design that would amount to a copy and thereby, an infringement upon a fashion design.     

 

ii. Design protection under U.S. Intellectual Property law

 

Like the music, film, and book publishing industries, the fashion industry profits by repeatedly originating creative content. But unlike these industries, the fashion industry's principal creative element - its apparel designs - is outside the domain of Intellectual Property law “and as a brief tour through any fashion magazine or department store will demonstrate, while trademarks are well protected against piracy, design copying is ubiquitous”.[10]

 

We all believe in the theory that extensive copying will destroy the incentive for new innovation, but fashion firms continue to innovate at a rapid clip, which is actually the opposite behavior of that predicted by this standard theory.[11]

 

At present, Congress has not passed legislation to provide copyright protection for fashion designs, thus copyright protection for fashion designs does not exist in the United States. Many in the fashion industry have lobbied Congress to pass legislation that would expand the scope of copyright to include apparel and fashion designs. The proposed bill, H.R. 5055, would protect a garment’s design, but not the actual garment.[12] Currently, the only protection available to the fashion industry is under trademark laws. However, trademark law provides limited protection, which afforded to registered logos, brand names, distinctive patterns, and in some instances patterns, prints on fabric.[13]

 

Copyright protection is denied to fashion designs due to the misconception that garments and other apparel are useful articles without any copyrightable elements. Useful articles are granted limited protection under the Copyright Act, provided there are elements of the pictorial, graphic, or sculptural work that may be identified separately and can exist independently of the utilitarian aspects of the article.[14] For a discussion of this, see Copyright Protection for Ornamental or Fanciful Design Elements: Chosun Case.

 

Having no copyright protection for fashion designs is outdated and hinders the promotion of new ideas for fashion.[15] The fashion industry has become an international and global industry, in that most of the firms that market apparel in the United States do business in many other countries, thus, fashion designs should have the same or similar copyright protection in the U.S. as in other countries wherein fashion designs are afforded  such protection.  The U.S. should look to European countries such as France as a model for copyright protection laws.

 

European law generally protects fashion designs from copying. There is no need for the moment, however, in either the form of lawsuits or the absence of design copying, that the behavior of fashion industry firms changes much from one side of the Atlantic to the other. This observation suggests that the industry's practices with respect to design copying are not sensitive to changes in legal rules, and that the industry chooses to remain within a low-IP regime even where the nominal legal rules are the opposite.[16]

 

iii. European law: copyright protection for fashion designs

 

     a. France 

 

France has a broad system of copyright, which extends protection to any “original work of the mind.” The French system covers any work of the mind and does not consider what kind or the form of expression that embodies the work. According to the French Intellectual Property Code (IPC), any original work, expressed in any form, may be copyrighted (L-112-1). The French IPC provides a list of works afforded copyright protection, with the caveat that the list is not exhaustive.  Examples of such protected works include any literary, artistic, or scientific writings, conferences, speeches, pleadings, dramatic works and musical comedies, choreographic works, fashion shows, musical compositions with or without words, movies, motion pictures, audiovisual works, designs, paintings, sculpture, engravings, lithographs, and photographic works, among others (L 112-2 to L 112-4).[17]  The protection of fashion works in France traces its origins back to the Copyright Act of 1793, which classified fashion as an applied art.[18] Thus, under present French law, fashion and garment designs, and even fashion shows, have copyright protection.        

 

The French copyright requirement differs from the United States, which requires “an original work fixed in a tangible medium of expression.”[19] Under the French copyright system, garment designs in the fashion industry are protected.[20] Article L. 112-2 of the French Intellectual Property Code specifically lists works including “creations of the fashion industries of clothing and accessories,” which it defines as those which, “because of the demands of fashion, frequently renew the form of their products.”[21] Under the code, fashion creations includes dress making, leather goods, fabrics, etc. The term of protection extends for the same amount of time as any other copyrighted material.[22]  Interestingly, there have been few suits that have arisen in France for copyright infringement of fashion designs.  This may be partly because France's legal system is not as litigious as the United States' system and it does not have enterprising plaintiffs' attorneys.  However, the lack of such lawsuits in France may also be attributed to the deterrent effect that the copyright protection laws have upon would-be copyists of fashion designs. Though copying of fashion designs still exist, the copying may be to a lesser degree than if France did not have such strong copyright protections in place for fashion designs.  Arguably, conferring copyright protection upon fashion designs promotes innovation and creativity in fashion, by pushing designers to come up with new and exciting designs.  An outright copy of garments is undoubtedly impermissible in France, whereas in the U.S., the infringer has strong arguments against a copyright infringement action. This gives would-be and existing infringers incentive to copy.  

 

Indeed, the French IPC expressly provides examples of copyright infringement. For example, reproduction, performance, dissemination, translation, adaptation, transformation or arrangement, by any means whatsoever, of a work of art without the consent of its author constitutes copyright infringement in France.[23]  Trafficking, exporting, or importing infringing works also constitute copyright infringement under the French IPC.[24]  The bright-line rules for what constitutes copyright infringement of fashion designs make the French law easier to apply and enforce.  

 

                

                 Marc Jacobs nylon bag                                                           Forever 21's "version"

 

                

 

 

                            

Marc Jacobs "Mouse" jelly flats  

                                                                                                            Old Navy's "version"

 

    

 

 b.European Union 

 

Compared with the United States, the European Union provides much more encompassing protection for apparel designs.  Since 2002, E.U. law has provided for both three (3) years of unregistered design protection and up to twenty-five (25) years of registered design protection, in five-year terms.[25]   Under Council Regulation (EC) No 6/2002 of 12 December 2001 on Community Designs, the E.U. seeks to establish a uniform protection for a design.  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.[26]    

 

Despite the availability of legal protection in the European Union (for both registered and unregistered designs), there is not much litigation in Europe involving fashion designs.  There is fashion design copying – which is growing – often by one firm, which offers the same clothing in the E.U. and the United States.[27]  Notwithstanding this, E.U. fashion designers that aim to stop copyists have the law on their side.

 

In 1994, Yves Saint Laurent sued Ralph Lauren in a French Court for the "point by point" copying of an Yves Saint Laurent dress design.[28] The plaintiff’s successful suit took place in Europe, where copyright laws are more protective of fashion designs, than in the U.S.. This famous dispute aside, what is most striking about design copying is how remarkably little attention it gets from the industry, either in Europe or in the United States.[29]

 

H&M and Zara, two highly successful fashion companies that have been dubbed “fashion copyists", are based in Europe, and have expanded extensively in North America with much success. This globalization of fashion in the last decades further heightens the immediate need for broad copyright protection laws extended to fashion designs. 

 

B. Proposed law: H.R. 5055 / H.R. 2203 - bill amending Chapter 17, Section 13 of the US Code

 

i. The new amendment

 

The bill amending the Design Piracy Prohibition Act to include protection for fashion designs was introduced in the Senate on August 2, 2007. The bill proposes to protect the copyright of fashion designs for 3 years. This bill draft also includes a change to vessel hull design copyright terms. This bill would grant copyright protection for “fashion design” and “apparel” including “men's, women's, or children's clothing, including undergarments, outerwear, gloves, footwear, and headgear; handbags, purses, and tote bags; belts and eyeglass frames.”

 

ii. Arguments for and against protecting fashion designs

 

H.R. 2033 gives copyright protection to fashion designs for 3 years if the design is registered with the copyright office within 3 months of being made public. Anyone that copies the design or makes a design that is “substantially similar” to the protected design would be deemed an infringer.[30]

 

The opinions about the new amendment are diverse. Even fashion designers are hesitant, arguing that the fashion industry has operated and thrived in a low intellectual property protection environment for such a long time. Nothing has changed in the fashion industry to gives rise to the need for a new protection and regulation. Copyright protection of fashion designs would be unfair, because there is almost no design that is original. Every design has always taken something from other designs; every design is inspired by another. A bill, which would protect the copyright of fashion designs would only increase litigation based on allegations of copying, and would stifle creativity in the industry.[31]

 

Critics further argue that applying copyrights to apparel design would discourage the copying that actually promotes the sale of designer clothing. Sales of high fashion are not driven by the public's need to be clothed but by the status an exclusive garment or handbag conveys. The more common a look becomes, the more the fashion-conscious seek out the next thing. "Copying" then promotes the cyclical nature of fashion that is essential to the industry - innovations become trends, which produce more innovation. Without copying, there would be no trends, and ultimately, no fashion.[32]

 

There are, however legitimate reasons why copyright protection of fashion designs is needed. As Susan Scafidi argues in her opening statement at the Hearing on H.R. 5055, “This is the Constitutional intent of copyright law – to promote and protect the development of creative industries, by ensuring that creators are the ones who receive the benefit of their own intellectual investment.”[33] She points out in her statement that even “H&M,[34] a popularly priced chain that distributes trends to the mass market and is sometimes cited as an example of indifference to copying, was itself knocked off and brought action last year under EU unregistered design protection.”[35]

 

Indeed, the argument that copyright protection of design would lead to a decrease in creativity seems weak and unfounded. France has arguably the strongest copyright protection laws for designs, and remains home to some of the most innovative and creative fashion designers in the world.[36] Indeed, France persists as a one of the world's fashion capitals. As Mr. Narciso Rodriguez stated during his testimony at the hearing: "I’m always traveling to collect ideas, to see new fabrics, develop unusual yarns and fabrics, and to get inspiration from architecture and different cultures and to sell my designs."[37] In fashion, as in any creative medium, there is a line between inspiration and infringement, and we need to make it clear under U.S. laws.

 

 

 

 

 

Footnotes

  1. Jennifer Mencken, A Design for the Copyright of Fashion, 1997 B.C. Intell. Prop. & Tech. F. 121201, (1997), available at: 8http://www.bc.edu/bc_org/avp/law/st_org/iptf/articles/content/1997121201.html (last visited April 21th, 2008).
  2. See Barbara Ringer, The Unfinished Business of Copyright Revision, 24 UCLA L. REV. 951, 976 (1977).
  3. Id.
  4. 17 U.S.C. § 1302.
  5. Rashmi Rangnath, Design protection for fashion designs and autoparts: A bad idea times two, available at: http://www.publicknowledge.org/node/1399 (last visited April 20th, 2008).
  6. Id.
  7. Id.
  8. 17 U.S.C. § 1302 (2000).
  9. Id.
  10. Kal Raustiala and Christopher Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, 92 Va. L. Rev. 1687 (2006).
  11. Id.
  12. Katrina M. Klatka, The New Trend in Copyright Law – Fashion Designs, available at: www.hahnloeser.com/references/563.pdf (last visited April 19th, 2008).
  13. Id.
  14. Mencken, supra note 1.
  15. Id.
  16. Id.
  17. See Internet Business Law Series, "Basics of Copyright Laws in France," Jul. 11, 2008, http://www.ibls.com/internet_law_news_portal_view.aspx?id=2076&s=latestnews.
  18. See Teri Agins, Fashion Knockoffs Hit Stores Before Originals as Designers Seeth, The Wall Street Journal, at A1.
  19. Katrina M. Klatka, The New Trend in Copyright Law – Fashion Designs, http://www.hahnloeser.com/references/563.pdf (last visited April 21th, 2008).
  20. Pierre-Yves Gautier: Propriété littéraire et artistique, at page 32 (2007).
  21. Code de la Propriete Intellectuelle, Article L. 112-2.
  22. Gautier, at 32.
  23. See supra note .
  24. Id.
  25. See Susan Scafidi, Written Statement on H.R. 5055, "The Design Piracy Protection Act," Jul. 27, 2006, p. 8.
  26. Title eII, Sec. 1, Art. 3, Council Regulation (EC) No 6/2002 of 12 December 2001 on Community Designs.
  27. Id.
  28. Societe Yves Saint Laurent Couture S.A. v. Societe Louis Dreyfus Retail Mgmt. S.A., E.C.C. 512, 514 (Trib. Comm. (Paris) 1994).
  29. Kal Raustiala and Christopher Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, 92 Va. L. Rev. 1716-17 (2006).
  30. Knock-off Protection for Fashion Designers, Copyright of Fashion Design, available at: http://www.gag.org/activities/advocacy_materials/copyright_protection_for_fashion_designers.php (last visited April 22, 2008).
  31. Supra note Societe.
  32. See Ragnat.
  33. Id.
  34. Fashion copyrights cut creativity - Trying to protect fashion designs from knockoffs would only harm the industry, Los Angeles Times, August 15, 2007, available at: http://www.latimes.com/news/opinion/editorials/la-ed-fashion15aug15,0,5421470.story (last visited April 19th, 2008).
  35. Susan Scafidi, Opening Statement on H.R. 5055 presented to Subcommittee on Courts, the Internet, and Intellectual Property, 27 July 2006.
  36. Scafidi, supra note .
  37. Narciso Rodriguez, Testimony before the Subcommittee on Courts, the Internet and Intellectual Property Committee on the Judiciary U.S. House of Representatives - Hearing On Design Law - Are Special Provisions Needed to Protect Unique Industries, February 14, 2008, available at http://www.counterfeitchic.com/Images/Narciso_Rodriguez_testimony_2-14-08.pdf (last visited April 23, 2008).

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