The global fashion industry is held up as the poster child for constant innovation in the absence of IP protection. For example, Johanna Blakley argues in her TED talk that the lack of copyright protection has driven fashion designers to elevate fashion to art and to develop a “signature look” that is so distinctive that everyone knows who created it. The side-effect of the designer’s freedom to copy, she argues, is the establishment of trends – the result of designers copying freely from each other. Trends help to move product, which drives revenues.

While the global fashion industry is substantial by any measure, and indeed has grown throughout the global economic downturn, there may be more to this than simply the lack of constraint from copyright laws.

First, although limited, copyright does have a role in protecting some apparel designs (beyond fabric patterns). In the US decision Poe v Missing Persons, a clear plastic swimsuit filled with rocks was held by a court to qualify as a work of art, in which case the unauthorised reproduction of the item was an infringement of copyright in that work of art.

In Australia, the distinctive knits of apparel designer Coogi Australia were held to be works of artistic craftsmanship in which copyright had been infringed.

In France, where national copyright laws are interpreted liberally by French courts to protect its local industries, a court ruling held that a Ralph Lauren dress infringed copyright in the famous black tuxedo dress first created by Yves Saint Laurent in 1966 and reappearing in YSL’s haute couture fall collections for 1992.

There is a suite of other intellectual property protections that designers may also enjoy. For example, for designer Issey Miyake, his “signature look” is patent protected. Issey Miyake has pushed the boundaries of clothing design through the use of technology. His PLEATS PLEASE range was designed to be highly functional – strong shapes that are light and can travel well (machine washable, rolled up for storage and do not require ironing). The patented method of pleating invented by Miyake was also utilised by him to create distinctive garments with strong architectural shapes – sculptural garments that might also meet the “works of art” test or “works of artistic craftsmanship” test under copyright laws.

The use of patents to protect apparel is not entirely new. According to the Powerhouse Museum in Sydney, Australia, rubber thong sandals recognised in the 1960s as an anti-establishment symbol and currently enjoying a revival on the (street) fashion scene, were once patented by Dunlop as a “device by which central forces are diverted externally”. The innovation apparently was in having the right rubber formula and the cup-shaped plug that held the thong into the sole, spreading sideways when force was applied so that it did not pull through.

In most nations, there are also design laws that are calculated to take up where copyright signs off and where patent protection is not appropriate. In the US, design patents are available to protect the ornamental features of designs. The US approach is unique in this regard because it approaches the protection of designs from a patent perspective (elsewhere, as in Australia, design protection takes a copyright-style approach). This has been criticised as posing difficulties for the fashion industry because the hurdle for patent protection is higher than that for copyright protection (a design must be “novel” and “nonobvious”, compared with “original”).

In truth, fashion designers have been able to obtain and rely on design patents to stop copycats – as illustrated by a recent battle between Canadian active apparel designer Lululemon and Calvin Klein. Lululemon claimed Calvin Klein had copied a waistband and overall design of its design patented yoga pants. While this dispute may ultimately be settled, it illustrates that design registration can be a powerful tool to stop copycats. Australian fashion designers have also been successful in relying on registered designs to stop knockoffs.

Meanwhile, since 2006, the fashion industry in the US has also been pushing for new laws to give a copyright-style protection for apparel designs. Dubbed the “quasi-copyright for fashion bill”, the proposed US Innovative Design Protection Act of 2012 (the IDPA) promises to extend IP protection for fashion designers.

As the US fashion market (worth some $250 billion in 2011) is one of the creative hubs of the global fashion industry and with cross-border trade over the internet ever increasing, this proposal is likely to have broad implications.

So, what changes are proposed by the IDPA? In the US currently, “useful articles” are ineligible for copyright protection. This includes items of clothing – unless they happen to qualify as a work of art. To qualify as a work of art, however, the aesthetic elements of a “useful article” must be able to exist separately from the utilitarian elements. This is known as the “separability” rule.

In Jovani Fashions v Fiesta Fashions, the US Court of Appeals suggests clothing designs will rarely qualify as works of art. The Court held that the design elements could not be separated from the garments’ ability to function as dresses. Therefore, the garments were not protected by copyright. The same separability rule applies to industrial designs generally.

The IDPA is proposing to give original apparel designs three years’ protection against copying. This would mean that items of apparel that are “substantially identical” or “so similar in appearance as to be mistaken for the design, and contain only … differences … which are merely trivial” would infringe the original design. This would give designers protection against the worrying trend for knockoffs to appear so quickly on the market – sometimes before the original designer gets its product onto shelves.

In fact, the US proposal is not new to the global fashion industry. In Europe, another key creative hub for fashion, industrial designs (including fashion) enjoy an unregistered European Economic Community design right for three years. This is an automatic right that prevents copying of an original design. The right comes into existence automatically when the design is made publicly available within the EEC, and lasts for three years. Only the appearance of an article, and not its technical function, is protected. The IDPA would give fashion designs in the US similar protection.

Last but certainly not least, the single form of IP protection that all fashion designers enjoy is brand protection. Brands encapsulate the “signature look” of any designer and it could well be argued that it is the brand itself rather than a garment design in its own right (think: Burberry) that drives the trends that move product. Therefore, it is no sheer accident that a signature look comes to be so strongly associated with an individual designer. Indeed, it may be that the substantial success of the fashion industry is not due to weak copyright protection but rather a result of strong brand protection.

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