Tearing Fashion Design Protection Apart at the Seams

59 Pages Posted: 12 May 2008  

Lisa J. Hedrick

Hirschler Fleischer

Abstract

Two days after the 2007 Oscar Awards, manufacturers began selling replicas of the haute couture dresses worn by actresses on the red carpet. These knockoffs sold for a mere fraction of the six-figure price tags of the original dresses. Yet, in copying these dresses no royalties were paid, and no law was broken. Unlike in Japan and the European Union, in the United States fashion designs fall outside the scope of current intellectual property protections. Therefore, fashion copying is rampant with design pirates freely reproducing unique articles created by Prada, Gucci, and other design houses.

Complaints from the fashion industry about design piracy spurred the introduction of three congressional bills in the past two years, each of which propose implementation of protection for original fashion designs. Protection under these bills would essentially grant three years of copyright-like protection to registered designs. The Council of Fashion Designers of America fully supports these bills as the solution to the $12 billion annual piracy problem the industry faces.

Enactment of fashion design protection will completely alter the intellectual property landscape in the United States and should be approached cautiously. Without congressional attempts to clarify the terms of the protection offered, the protection as proposed in these bills will still allow design piracy to continue. Even with significant changes, meaningful protection will be impossible because fashion design is difficult to define and even more difficult to protect. If enacted, other industries, which are not currently protected by copyright, will likely clamor at Congress' door asking for similar protection. In the end, Congress should abandon this legislation because the expansion of intellectual property law will harm the industry the legislation purports to protect and likely serve as a model for meaningless and similarly harmful protection in other industries.

Keywords: fashion design, copyright, protection, H.R. 5055, H.R. 2033, S. 1975

JEL Classification: K39, L10

Suggested Citation

Hedrick, Lisa J., Tearing Fashion Design Protection Apart at the Seams. Washington and Lee Law Review, Vol. 65, No. 1, pp. 215-273, 2008. Available at SSRN: https://ssrn.com/abstract=1127190

Lisa J. Hedrick (Contact Author)

Hirschler Fleischer ( email )

2100 E. Cary Street
Richmond, VA 23223
United States

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