Monday, March 8, 2010

Copyright as solution (?), again

The Boston Globe has an interesting feature article on whether the law should protect fashion from knock-offs. Prof. Jeannie Suk (HLS), who has written an article together with Prof. Scott Hemphill (CLS) about the Law, Economics and Culture of Fashion which came out in the Stanford Law Review last year (just check out the short and sweet version in their op-ed at Slate here), is reportedly helping/working on the text of a bill that will accord copyright protection to fashion designs. The bill is being sponsored by Sen. Chuck Schumer (D-NY).

Prof. Suk explains that "...lots of people take for granted that fashion is an area where creativity is involved, and that they [people] also overlook the fact that there is no protection for designers." Likening it to books, music, film and art which are all granted copyright protection, she states that fashion designs will especially protect emerging designers from having their ideas copied and will therefore encourage more people to enter the field.

Apart from the difficulty of setting a clear baseline on what constitutes a "knock-off" for legal liability purposes (the article itself raises some of the concerns by industry members), I'd like to focus instead on first, if the IP clause can indeed be expanded to cover fashion designs , and second, the broader cultural impact that this proposal raises. I haven't really thought much about these issues, having just read the article this morning but these are the few things that come to mind.

Inasmuch as IP (both copyright and patents) is now a constitutional staple (Eldred v. Ashcroft, Golan v. Gonzales and KSR v. Teleflex are among the more prominent ones), the significance of the self-limiting nature of the IP clause appears more salient today. The IP Clause of the Constitution states "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." Prof. Dotan Oliar (Virginia) has argued, mainly from reading original intent, that the promotion of progress part of the clause is the limitation on the power of Congress to create monopolies of this sort. In other words,this is a deliberately utilitarian theory of right, not a moral one. So does protecting fashion designs promote the science or useful arts? Is fashion design a useful art? What can be the possible arguments both for likening fashion designs to books or films and for distinguishing it from them?

Second, there has always been an inherent tension between the IP clause and the free speech one. Government regulation often steps in cases where a policy choice is made between the rights of authors and those who make use of their materials, that is, one work is considered entitled to copyright protection and other not. The law allows certain exceptions under fair use but the transformative effect in most cases, are always contested, as in instances of sampling where an arbitrary period of time (seconds, to be exact) are used to determine if the material is infringing. Will three lines or three buttons spell the difference between an authentic BCBG Max Azaria dress and a cheap H&M version? I am not so certain at this point if copyright is the appropriate kind of solution to "problems" (I bracket them because it might not even be a problem) posed by fashion knock-offs. Trademarks are already protected (think Nike, Ferragamo, Lacoste, etc.) but fashion designs can be a far more tricky story. In any case, nobody starts from nothing and people always end up being inspired by those that comes before them. The space for leeway seems up for grabs. Will a copyright law protect an upcoming fashion designer or prevent new ones from even beginning?

1 comment:

  1. Very interesting post, Anna. I also read the Globe piece and had reservations. First, in terms of constitutionality I think it's not a stretch to see fashion as a useful art. Fashion designers (and much of the population) view themselves as artists engaged in a creative act. And fashion obviously has esthetic value. Congress's power to legislate here, I believe, will be pretty straight forward.

    My concerns lie very much with yours. It's not that fashion designers don't need protection, and certainly there are eggregious cases of copy cats (like those selling purses out of the trunk of their car). But it's tricky to design such a protection. Here are my two cents:

    1. First, the law should lean toward protecting only in the eggregious cases that don't promote the esthetic value of fashion. Designers who are inspired by/engaged in/adding to/elaborating on previous designs should be protected. Those who are simply selling knockoffs should not.

    2. Second, The policy considerations are different when it comes to fashion. As the Globe piece says, fashion is all about trends, much less so than art or music. Thus, we want to be generous in affording some level of borrowing.


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