The Most Fascinating Kind of Art: Fashion Design Protection as a Moral Right
New York University Journal of Intellectual Property & Entertainment Law, Vol. 2, p. 188, 2012
39 Pages Posted: 20 Jan 2020
Date Written: November 1, 2012
In recent years, politicians, academics, and industry professionals have argued vehemently that copyright protection should extend to cover fashion designs, which are currently excluded under the “useful articles” doctrine. These arguments have proved somewhat successful, as a number of bills have been drafted to expand copyright laws to include fashion, most recently the Innovative Design Protection Act of 2012, and two congressional hearings have been held on the subject. None of bills, however, have managed to gain much traction in Congress, and progress appears to be stalled. My objective in this Note is not to examine the legislation that has been proposed, but to uncover why the supporters of fashion copyright have been so steadfast in their promotion of it. Copyright in the United States is built on economic principles and aims to incentivize innovation. It seems clear that from an economic perspective, copyright is unneeded to incentivize creativity in the fashion industry. After reviewing the legislative history and other arguments made by proponents of fashion copyright, a different picture emerges: supporters of fashion copyright view fashion as “art” and feel a sense of harm when it is cheaply or slavishly copied. Even if designers feel no economic harm from the copying of their creations, they are morally harmed by it. Perhaps then moral rights law, not copyright, provides the appropriate theoretical framework in which to analyze the extension of further protections to fashion design. The stalled debate over fashion copyright might be revitalized by discussing design protection in the more theoretically relevant framework of moral rights laws, which are concerned with reputational — as opposed to economic — harms.
Keywords: fashion, fashion copyright, design copyright, moral rights, IDPPPA, innovative design piracy protection and prohibition act, IDPA, innovative design protection act, design protection, fashion as art
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