Lawless Fashion

by: Meghan Collins, Graphic Designer

In honor of the New York Mercedes-Benz Fashion Week, this is a look in the legal protection provided to designers and their artwork.[1]

Surprise! There is hardly any protection at all.

How could that be? How could an industry composed of talented visionaries have little to no protection from copyright and trademark laws? Well, the simple answer is, because clothing is seen as utilitarian.

Title 17 of the United States Code states:

“Copyright protection subsists. . . in original works of authorship fixed in any tangible medium of expression . . . Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.”[2]

Clothing, as is well known, is used to cover up the human body. Fashion started as a utilitarian industry simply making pants that have two holes for your legs, and shirts have two holes for your arms. Intellectual property laws did not extend to these designs, because every pair of pants, no matter the color, the taper, or the fabric, needs two holes for human legs. It would be unreasonable to subject the “pant” design to copyright for it would be impossible to create original works without paying royalties for the use of the “pant.”

The majority of fashion designers do not want their designs to be copyrightable, because if no one can copy their work then trends and classics would not exist. Coco Chanel was a big proponent of borrowing and copying, because in her words “Innovation! One cannot be forever innovating. I want to create classics.”[3] When asked about another designer she said:

“Saint Laurent has excellent taste. The more he copies me, the better taste he displays.”[4]

Tom Ford, a designer often critiqued as never having created anything of his own, but rather using old trends and designs said “[a]s a fashion designer, I was always aware that I was not an artist, because I was creating something that was made to be sold, marketed, used, and ultimately discarded.”[5]

Even though designers cannot be copyrighted or patented they can be trademarked. Logos are often covering a majority of the fabric of a garment because the logos are trademarked and harder to copy. Yet, walking down Canal Street in New York City, one will see hundreds of bags, shirts, sunglasses, and scarves with designer logos. One would think that big name designers would be angry about these cheap imitations, but they aren’t. They aren’t because the people shopping on Canal Street are not their target consumers.

Other designers have not been as accepting of the industry’s relaxed standards on borrowing designs. Christian Louboutin brought the issue to court and said “The shiny red color of the soles has no function other than to identify to the public that they are mine. I selected the color because it is engaging, flirtatious, memorable, and the color of passion.”

In a suit filed against Yves Saint Laurent,  the United States Court of Appeals for the Second Circuit overturned the lower court’s decision that the red sole was not copyrightable and gave the design full protection under the law as long as the actual shoe color was not red.  “David Bernstein, a lawyer representing YSL, told the Wall Street Journal, ‘No designer should be able to monopolize a color in fashion.’”[6] Some designers, such as Diane Von Furstenberg, president of Council of Fashion Designers of America, would see this court decision as a victory for the fashion industry but most completely disagree with Louboutin’s position on copyrights for fear that imposing strict standards would bar creativity and increase costs of production.

Even though fashion is awarded very little copyright protection in the United States, it is one of the highest grossing creative industries in the world. The industry as a whole grossed over 200 billion in 2007. [7] Whereas, industries that have strict copyright standard grossed not even half that amount.

The fashion industry and its lack of copyright protection will continued to be discussed because the scale of fashion has certainly started to tip in the direction of art rather than utility.