Upon hearing the word(s) “fashion designer,” one rather swiftly, if not ineluctably, presumes that the individual bearing this title is creative and an artist. Thus, one would assume that such artists’ creations would be protected from infringement by law. Yet under the current U.S. legal regime, this is not the case. Unlike other art forms like photography, sculpture, or even architecture, fashion designs do not receive copyright protection. While logos and some distinctive patterns may obtain recognition under trade dress or trademark laws, the overall design of a garment or accessory cannot be “owned” by a designer. This lack of protection stifles creativity in the fashion industry, causing many designers to sacrifice ingenuity for the assurance that their items will not be copied (best seen in repetitive logo-bearing designs like the Louis Vuitton Monogram print).
Similarly, entry-level fashion designers cannot claim ownership of an original work and often fear replication of their creations by well-known designers, which subsequently has the potential of reducing the former’s sales. As a result, fewer designers enter the fashion market each year. In order to prevent the stagnation of the fashion industry, lawmakers need to amend U.S. law.
While past proposals such as the Design Piracy Prohibition Act have failed, a more recent proposal, the Innovative Design Protection and Piracy Prevention Act, has made strides in its policy recommendations. To achieve success in passing such a bill, it will be necessary to look to other jurisdictions and to examine the advantages of their regimes. Many European countries have created a separate design right to cover fashion designs. This may a viable option for the United States; it presents a malleable standard that can adjust to the unique characteristics of the fashion industry—including its seasonality and its derivative, collaborative nature. As we argue in our student note, Eyes off the Runway: How to Prevent Piracy in Fashion, published this past week in the Harvard Negotiation Law Review Online, U.S. laws need to be modified in order to foster the creation of new ideas, one of the driving forces behind this nation’s prosperity.