One of the great examples of domains where innovation (?) is vibrant despite the absence of formal copyright protections is up for reconsideration, apparently: O.K., Knockoffs, This Is War
Designers like Diane Von Furstenberg, Narciso Rodriguez and Zac Posen have been journeying there to lobby for copyright protections like those governing books, music and other creative arts. Mr. Posen was in Washington on Tuesday with Steven Kolb, the executive director of the council, who said a bill could be introduced in Congress as early as today by Representative Bob Goodlatte, a Virginia Republican.
[…] Copyright law protects a creator of original material â€” like a songwriter or screenwriter â€” for her life plus 70 years. But clothing is not protected. In 1998 Representative Howard Coble, a Republican from North Carolina, introduced a revision to the copyright law that classified boat hulls as a design protected for 10 years. Citing the boat hull statute, fashion designers are asking for similar protection for clothing designs for three years.
Hypothetically that would mean that Allen B. Schwartz, the owner and designer of ABS, the leading brand in the $300 million business of Oscar knockoffs, would be restricted to selling copies of the embroidered beige Elie Saab gown worn by Halle Berry in 2003, not the latest Vera Wang yellow butterfly ruffles for Michelle Williams.
“That is the most ridiculous thing,” Mr. Schwartz said. “There is no such thing as an original design. All these designers are getting their inspiration from things that were done before. To me a spaghetti strap is a spaghetti strap, and a cowl neck is a cowl neck.”
Well, good luck with that argument; it hasn’t really worked in the past.Â Here’s a little more from the article:
The reason clothing design is not protected under copyright or trademark law in the United States is that it is considered foremost as a utilitarian item, not an artistic expression or scientific invention. (Logos, however, and some design signatures â€” like the three stripes on Adidas track suits â€” are protected from copying under trademark statutes.)
But the designers’ trade group argues that the legal principle exempting fashion from copyright protection â€” a 200-year-old idea that useful objects should be unregulated to encourage the growth of industry â€” is outdated in this era of sophisticated mass copying.
“The whole underpinning of that 200-year-old law of functionality was to promote creativity and innovation,” said Alain Coblence, a lawyer hired by the Council of Fashion Designers and by fashion trade groups in Paris and Milan, which also promote the legislation. “Yet the situation is exactly the reverse because designers now must ask what is the incentive to innovate if you know your creation is going to be stolen within days and your designs are going to be used before you have a chance to use them for yourself?”
Although designers have occasionally pursued cases of design piracy in court, only the most egregious cases have been successful. In 1980 a federal appellate court held that a pair of belt buckles by the accessories designer Barry Kieselstein-Cord were not ordinary buckles but had reached the level of creative art. (A dissenting judge argued, “Innovations of form are inseparable from the more important function they serve â€” helping to keep the tops of trousers at waist level.”)