A Design of its Own: How to Protect the Fashion Industry

American Intellectual Property Law Association (AIPLA) Quarterly Journal, Forthcoming

31 Pages Posted: 23 Aug 2018  

Gianna Cresto

George Washington University, Law School, Students

Date Written: March 11, 2018

Abstract

This note discusses the gap in intellectual property protections for the fashion industry. First, it details why fashion is art of the type that typically qualifies for copyright protection, and not just a means of covering the body. Next, it discusses why this hybrid nature makes it unique and worthy of protection under current U.S. copyright law. Because designs are often chosen not just for their functional purpose, but for their artistic and expressive qualities, clothing is different from many other types of works protected by IP frameworks, including trademark and patent. The dual purpose and ability of fashion to be used as a form of expression should not keep if from the protection it deserves. The Supreme Court addressed the standard for copyright protection in the context of clothing design in Star Athletica v. Varsity Brands. This Note suggests that this recent development marks an opportune time to push for new legislation that will expand the Star Athletica ruling. These increased protections for the fashion industry should be developed by drawing on other forms of IP protection for fashion in the United States, and protections in place in other countries. These hybrid works call for a hybrid solution. Though its solution, this Note fills the gap for fashion designs, particularly for designers that are just starting out or less conspicuous when it comes to branding.

Keywords: copyright, trademark, design patent, fashion, Star Athletica, designers, art

JEL Classification: K00, K11, K39

Suggested Citation

Cresto, Gianna, A Design of its Own: How to Protect the Fashion Industry (March 11, 2018). American Intellectual Property Law Association (AIPLA) Quarterly Journal, Forthcoming . Available at SSRN: https://ssrn.com/abstract=3219968

Gianna Cresto (Contact Author)

George Washington University, Law School, Students ( email )

Washington, DC
United States

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