Fashioning the Law of Design
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Legislation pending before Congress would give designers intellectual property rights over their designs for the first time in U. S. history. Will this help or hinder the fashion industry? Will designers finally be able to prevent unauthorized reproductions? Or will their creativity be hobbled if they can’t borrow inspiration from each other?
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Fashioning the Law of Design
- 2. ThankstoJoanandJordanLeibman PreviousForums 9/25/09 - The Art of Hope: a panel discussion on Imani Workshops 11/11/08 - The Valuation of Art 11/9/07 - The Business of Art and the Art of Business 11/14/06 - Art Forgery and Fraud 11/11/05 - What's In Your Portfolio?: Art as an Asset Class 10/4/04 - Crises in the Protection of Archaeological Heritage: Iraq and Afghanistan
- 4. Kenan L. Farrell Intellectual Property and Entertainment Law kfarrell@klflegal.com www.KLFLegal.com (c) Kenan L. Farrell 2010
- 6. “Intellectual property protection is necessary to stimulate creativity and innovation.”
- 10. -The Ecology of Creativity in Fashion
- 11. "Fashion should slip out of your hands. The very idea of protecting the seasonal arts is childish. One should not bother to protect that which dies the minute it is born.” -Coco Chanel
- 13. U.S. Constitution, Art. I, Sec. 8 – The Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
- 14. Copyright 101 Copyright are exclusive rights granted to the creator of an “original work of authorship fixed in any tangible medium of expression” Bundle of Rights 1) reproduction of the work 2) preparation of derivative works 3) distribution of copies of the work 4) public performances of the work 5) public display of the work. (c) Kenan L. Farrell 2010
- 16. All images and text in the presentation are used for purposes such as: •criticism •comment •news reporting •teaching •scholarship •research
- 22. Copyright 101 No copyright protection for “useful articles,” that is, goods in which creative expression is compounded with practical utility.
- 25. Copyright 101 Copyright does extend to "features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”
- 37. Trademark 101 • A trademark is a 1) distinctive sign or indicator 2) used to identify products or services as originating from a unique source, and 3) to distinguish its products or services from those of other entities. Reduces consumer confusion Reduces unfair competition
- 39. Design Copying
- 41. Remedies for copyright infringement are easier to prove and much harsher than trademark infringement
- 42. Trademark Checklist Get your domain name(s), Facebook username, Twitter account, etc. At bare minimum, do a Google search for similar marks When budget permits, seek federal registration Always use a proper trademark notice (™ for common law rights, ® if you’ve obtained registration)
- 43. Patent 101 • “Design patent” - 14-year term of protection for “new, original, and ornamental designs for an article of manufacture.” • The filing fee for a design patent is $100, the issue fee is $400, and the maintenance fees over the life of the patent are $3,500. • Applying for a design patent can take several years, which exceeds the life expectancy of the market for many designs.
- 44. Increasing Use of Patents • Innovations in the creation of synthetic fabrics have increased the prevalence of patents. • A patent portfolio reflects technologies for the creation of, for example, crease and weather- resistant fabrics.
- 45. Fashion Industry 101 $750 billion of apparel sold annually worldwide U.S. Fashion Industry - $350 billion U.S. Music Industry - $66 billion U.S. Film Industry - $28 billion
- 46. Giorgio Armani (Armani) - $4.1 billion Ralph Lauren (Polo) - $3.6 billion Rosalia Mera (Zara) - $3.5 billion (richest non-Chinese woman) Giuliana Benetton (Benetton) - $2.5 billion Miuccia Bianchi (Prada) - $1.4 billion Doris Fisher (Gap) - $1.3 billion
- 47. Fall shows are held during consecutive weeks in February and March, first in New York, then London, then Milan, and finally, in Paris. Spring shows are held during consecutive weeks in September and October, in the same cities and order. Midwest Fashion Week – March 2011
- 48. Models Photographers Buyers Purchasing agents Retail salespersons Stylists Demonstrators and product promoters Textile, apparel, and furnishings occupations
- 50. -Bureau of Labor Statistics
- 56. Fashion Originator’s Guild 1932-1941 1941 - Fashion Originators’ Guild of America v. Federal Trade Commission - the Supreme Court held the Guild’s practices to be unfair competition and a violation of the Sherman and Clayton Acts.
- 57. Cyclical - styles fall out of fashion and are replaced, often seasonally, by new styles
- 58. Positional goods - goods whose value is closely tied to the perception that they are valued by others The value of a positional good arises in part from social context
- 59. Anchoring • The process by which the industry converges on a few major design themes, or trends, during a fashion season – colors, whether skirts are fitted or flowing, or cuffs are wide or slim • The mechanism by which the fashion industry signals to consumers that trends have changed, and it's time to update the wardrobe.
- 60. Innovative Design Protection and Piracy Prevention Act (S.3728)
- 61. Who wants it?
- 62. Protection for fashion designs would be automatic. No registration requirement. Short, three-year protection against “substantially identical” designs. Must be “non-trivial” variation over prior designs
- 78. c) Acts without Knowledge. — It shall not be infringement under this section to make, have made, import, sell, offer for sale, advertise, or distribute, any article embodying a design which was created without knowledge either actual or reasonably inferred from the totality of the circumstances, that a design was protected under this chapter and was copied from such protected design.
- 80. Substantial similarity Access Ownership
- 82. §1327. Penalty for false representation Whoever knowingly makes a false representation materially affecting the rights obtainable under this chapter [17 USC § §1301 et seq.] for the purpose of obtaining registration of a design under this chapter or for purposes of obtaining recovery based on a claim of infringement under this chapter [17 USC § §1301 et seq.] shall pay a penalty of not less than $ 5,000 and not more than $ 10,000, and any rights or privileges that individual may have in the design under this chapter [17 USC § §1301 et seq.] shall be forfeited.
- 84. • Be careful what you ask for • Unintended consequences • Increased regulation can create a situation where everyone has rights but only the wealthy and powerful can exert them
- 85. INDIANA • Art Institute, Harrison College, Indiana University, Purdue University and Ball State University • IMA Fashion Arts Society • Fashion, Art & Design Law Society • Indianapolis Fashion Collective
- 87. Resources Innovative Design Protection and Piracy Prevention Act, S. 3728 The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, Virginia Law Review, Vol. 92:1687 Chanel or Fauxnel? The Chanel Jacket…Unraveled (http://www.learcenter.org/pdf/RTStranscript.pdf) Between the Seams, A Fertile Commons: An Overview of the Relationship Between Fashion and Intellectual Property (http://www.learcenter.org/pdf/RTSJenkinsCox.pdf) The Ecology of Creativity in Fashion (http://www.learcenter.org/pdf/RTStranscript.pdf)
- 88. For me, the moment I'd finished it, nothing made me happier than seeing copies of what I had done, because that meant I'd done the right thing. -Tom Ford
- 89. Trade Dress • Trade dress involves the total image of a product . . . size, shape, color, color combinations, texture, graphics. • Limited to non-functional design elements • Limited to design elements that are “source designating,” rather than merely ornamental
- 90. • § 106A. Rights of certain authors to attribution and integrity • (a) Rights of Attribution and Integrity.— Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art— (1) shall have the right— (A) to claim authorship of that work, and • (B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create; • (2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and • (3) subject to the limitations set forth in section 113 (d), shall have the right— • (A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and • (B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
Notas del editor
- Legislation pending before Congress would give designers intellectual property rights over their designs for the first time in U. S. history. Will this help or hinder the fashion industry? Will designers finally be able to prevent unauthorized reproductions? Or will their creativity be hobbled if they can’t borrow inspiration from each other?
- The Jordan and Joan R. Leibman Forum was established in 2004 to examine issues on the legal and business environment of the arts.
- The forum is a joint project of the law school, the IU Kelley School of Business in Indianapolis and the IU Herron School of Art and Design. IndyLaw - Elizabeth Allington, Shaun Ingram FAD - Dr. Erin Albert and Courtney Lopez
- In the interest of time, I’ll wait to tell you a bit more about myself during the Q&A.
- Let’s talk about fashion. Eccentric fashion designers, beautiful models, expensive clothing…that’s it. I’m no fashionista, I’m looking at the fashion industry from the perspective of IP Law. How is the fashion industry so successful with only limited intellectual property protection? Design copying is rampant and yet it’s a booming industry. It raises some interesting questions about originality, copying and how to best promote innovation. I promise plenty of glamorous photos for the fashionistas and hopefully enough black letter law to satisfy the lawyers. Let’s figure out who’s in the crowd How many are lawyers? How many in the fashion industry? Law students? Fashion students?
- For the last few decades, the mantra has been that strong intellectual property protection is necessary to stimulate creativity and innovation. Powerful industry lobbies have been making this claim to Congress in exchange for longer and greater protection. IP law provides incentives by allowing creators to control access to their works and demand payment for them. Without these incentives – the argument goes – people will be unable to profit from their works and will stop creating.
- However, the Fashion industry has been largely without design protection since 1941. Prada milan
- Yet, despite only limited intellectual property protection for fashion, style houses continue to make money, the industry is booming and designers continue to develop new looks every season. Creativity is somehow thriving in the absence of design protection Gucci milan
- But some people are not happy. Despite many in the industry wanting nothing to do with design protection, there’s another bill. Every 4-5 years. Copyright-like protection. We have to ask what level of monopoly should be granted and…are the right people (meaning the creators) being compensated?
- But what if more protection wont spur greater creativity or save creative industries from extinction. What if these expansions might actually harm the very creativity and industries they seek to protect? Guy Trebay – Fashion Reporter, NY Times :: Tom Ford – American fashion designer, Gucci :: Laurie Racine - President, Center for the Public Domain some industries that asked for heavy protection like the music and film industries…find that they still are operating in an environment of effectively no IP protection
- Case study in how a fashion design can be copied far and wide and still remain economically rewarding “She wasn't threatened by the copies because the truth is the cut could not be replicated. The fabrics might be similar, but she was so obsessed with the integrity of the cut that she never felt threatened by any of the copies.”
- IP is property rights recognized for creations of the mind Exclusive rights to a variety of intangible assets, 1. music, literary, artistic works 2. discoveries and inventions 3. words, phrases, symbols, designs
- In recent years, the scope of U.S. intellectual property protection has expanded greatly in a variety of fields. Copyright terms extended from the original 14 years to life of author plus 70 years. Powerful industry lobbies continue to push for ever stronger intellectual property protections. Intellectual Property law exists to encourage innovation and creativity or profit margins?
- a "derivative work," an expressive creation that includes major, copyright-protected elements of an original, previously created first work.
- So isn’t this presentation a derivative work? Fair use – technically copyright infringement, but an exception Hopefully a little bit of each of these will occur tonight.
- Copyright litigation is really booming right now. Music and film industries are still suing people left and right. Newspapers have started suing bloggers. Question to keep in mind: And the fashion industry wants in on this? Protection of rights includes licensing.
- What kind of things are protected by copyright? motion pictures, dramatic works, audiovisual works,* literary works, pictorial works, musical works, choreographic works, sculptural works, sound recordings, graphic works, dramatic works
- motion pictures, dramatic works, audiovisual works, *** literary works, pictorial works, musical works, choreographic works, sculptural works, sound recordings, graphic works, dramatic works Died 100 years ago. Life of author plus 70 years. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first Edited by harriet elinor smith Has anybody read it yet?
- motion pictures, dramatic works, audiovisual works, literary works, pictorial works, musical works, choreographic works, sculptural works, sound recordings, graphic works, dramatic works
- motion pictures, dramatic works, audiovisual works, literary works, pictorial works, musical works, choreographic works, sculptural works, sound recordings, graphic works, dramatic works
- Why doesn’t copyright law protection fashion designs. Big exception – no useful articles "useful article" is further defined as an "article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.
- Useful items Bottom line. If you want protection for the ornamentation of a useful article, you need to look to a design patent
- But do we think of apparel as useful article? Courts do. Apparel protects its wearer from the elements, provides modesty, decorates the body, self-identification
- Ornamentation of useful article The exact lines have been drawn by courts but generally no protection for most fashion design
- **Copyright extends to "features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”** designs or drawings on the surface of apparel, which are capable of being independent works of art Jewelry is considered capable of existing independently Vera bradley, great success story from Fort Wayne, Indiana with baggage/luggage
- patterns for knit sweaters, lace designs on wedding gowns have been held to constitute copyrightable subject matter. copyrights for these works are thin, protection from designs that are confusingly similar to the original
- First law school-style hypothetical…Victoria’s Secret Fantasy Bra. Constructed of Diamonds. Worth $2million Jewelry? Apparel?
- Low IP protection since 1941, copying is rampant. So we have to ask…is copying always a bad thing? Broader pallette of design choices Acceleration in creative innovation Faster establishment of global trends Left, a dress from the Versace Spring/Summer '07 collection, which retailed for $1,685. On the right from Bebe, which sells their most expensive comparable dress for about $130. Forever 21 also sold a similar dress later in the summer. “Referencing” or “Inspired By” or “Homage”
- Fashion isn’t the only industry that thrives in the absence of copyright protection.
- Useful articles
- Source code is copyrighted but variety of licensing and contractual arrangements that avoid the default rules of copyright
- Food, recipes – instructions tattoos
- Scent of perfume
- Set of instructions
- Allows a company to Build goodwill in its trademark
- Trademarks of famous designers Well protected against piracy
- Illustration of the difference between copying fashion design v. copying trademark. This legal distinction is crucial. It enables the fashion world to sustain a wide open creative ethic while maintaining profitability. Replica – copy that is relatively indistinguishable from the original
- Allows you protect a powerful brand – give people a reason to want the real thing. Knockoffs indirectly affirm the brand franchise of the original Even in the presence of design copies, your name can come to represent look and artistic standard
- Why not satisfied with trademark law?
- Since trademark law is currently your best source of protection, here’s a checklist.
- Design patents are an extension of patent law that protect the ornamental features of an invention, which must be separable from its function List all prior art xxPatent law provides protection for new and useful processes, machines, products and compositions of matter through utility patentsxx
- No longer dependent on natural fabrics.
- $350 billion US. By comparison, music industry is $66 billion $28 billion
- At every one of these shows, new (?) fashion designs.
- At the top is a designer category that includes three different types of products. First is a very small trade in haute couture, that is, custom clothing designed almost entirely for women and sold at very high prices. Directly below is a much larger business in designer ready-to-wear clothing for women and men. This tier is further segmented into prestige collections and lower-priced bridge collections offered by many famous designers. Another level down is “better” fashion, an even larger category that consists of moderately priced apparel. Below that is a basic or commodity category.
- Bridge lines self-copying In order to compete with lower-priced design copies, the designers create their own line at that price point Payless and limited shoe lines
- Capsule collection
- Digital photography, the Internet, global outsourcing of manufacture, more flexible manufacturing technologies, and lower textile tariffs have significantly accelerated the pace of copying.
- The “Fashion Originators’ Guild” registered American designers and their sketches and urged major retailers to boycott known copyists. Retailers and manufacturers signed a ‘declaration of cooperation’ wherein they pledged to deal only in original creations. Non-compliant retailers were subject to “red-carding” (i.e., boycott). Guild members who dealt with non-cooperating retailers faced Guild-imposed fines.
- inducing more rapid turnover and additional sales. Themes – minimalist, hippie, Romantic, Military,
- What we buy is partially a function of what others buy.
- While the industry produces a wide variety of designs at any one time, readily discernible trends nonetheless emerge and come to define a particular season's style. These trends evolve through an undirected process of copying, referencing, input from consultants, observation of rivals' designs at runway shows, communication with buyers for key retailers, and coverage and commentary in the press.
- Council of Fashion Designers of America - membership consists of more than 350 of America’s foremost womenswear, menswear, jewelry, and accessory designers. How many in room are members of the CFDA? “These duplicate versions then have the potential to flood the market and devalue the original by their ubiquity, poor quality, or speed at which they reach the consumer. Technological advances to the means of textile and garment production, as well as increases in the number of distribution channels and the availability of cheap labor in emerging economies have created serious challenges to the growth of fashion design in America. The Design Piracy Prohibition Act grew from these concerns, and was initiated with two main objectives: to protect both the established and the up-and-coming designers whose development, growth and success helps to support the $350 billion U.S. fashion industry; and to preserve intellectual property.” How many in room are members of the CFDA?
- Designers make initial determination as to whether their designs are "a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs.” Failure to mark a protected design will preclude an action for infringement before providing written notice of design protection.
- Title 17, Chapter 13 – Protection of Original Designs Sui generis - copyright- like protection outside the Copyright Act
- Here’s the definition of fashion design.
- This is what use to be a fashion design
- "non-trivial” - Does this mean a design cannot be inspired by a past design, or can’t be a concept within the public amounting to a trend? Designers like to believe that their creation is completely unique, but reality is that designers pull inspiration from the art, graphics, and patterns of past designers.
- Will the only protectable designs be works like these?
- Still no protection for surprisingly large pet apparel industry
- Examples of “article of apparel”?
- Recycled containers
- Colors and patterns on fabrics are not considered
- Doesn’t protect against similar designs, just copied designs
- The challenge will be applying this definition. Specific factors will need to be determined to assess whether a fashion design is so "substantially identical" that it is likely to be mistaken for the original. Thus for protection, is a line for line copy of the design, cut, pattern and other features necessary to show that the copy is nearly indistinguishable from the original? What weight will design differences be given to determine whether they are merely trivial and infringing on the protected design?
- No registration requirement. Same components as copyright claims but have to be plead with particulariy like a fraud case
- The pleading requirement is important in the context of another provision. Typically, seller or distributor is not liable. So if someone comes to your store and tells you that one of your products infringes their design, you have to give up the source and if you order from them again, you shall be deemed to have infringed. Recall what we learned about who makes initial determination of copying. Not a court, not the copyright office but the designer.
- To prevent false claims of copying, increased the penalty for false representation
- Lawyers siphon off a large part of any expected profits. Low-grade copies actually signal the desirability of the original, thus enhancing its value. If copying were illegal, the fashion cycle would occur very slowly. Even creators who are copied sometimes copy themselves. The house that sets the trend one season may be following it the next, and whether a particular firm will lead or follow in any given season is difficult to predict.
- Fashion industry is right here in Indiana.
- Develop Indy has pegged Fashion as one of four emerging industries in Indianapolis
- Relative of trademark law Fashion designs rarely will have secondary meaning because they are not intended to identify the source of the product, but instead aim to make the product more useful or appealing In addition, most fashion designs would be too short-lived to achieve secondary meaning