Design piracy in the United States: Time to fashion a remedy?

Abstract

AbstractThis article considers whether the Copyright Act of 1976 should be extended to include fashion design, and if so, on what basis. Part I contains an analysis of what “fashion” means and why innovation in this field should be promoted. It considers the current protection given to fashion designs in Europe and the United States, as well as the proposed amendment to the latter's copyright law. Part II evaluates the most prominent arguments against the extension of copyright to fashion designs. Here it will be noted that all too frequently, critics of protection base their arguments on an erroneous portrait of the fashion industry, whereby neither technology nor young designers are taken into account. It will be shown that these assumptions about the fashion industry fail to describe the market reality; whereby technological advances mean copies can beat originals to the shops, that these copies may be indistinguishable from the original, and that it is the emerging designers who suffer the most. Part III proposes it is time to create a solution fit for fashion design. It explains why unique and innovative fashion designs are deserving of intellectual property legislation, and proposes what kind of protection is the most appropriate. It concludes that the time‐limited copyright regime provided in the Innovative Design Protection Act best balances the competing interests of designers and consumers. The Conclusion underscores the importance of passing this legislation, which would fashion a remedy able protect innovation, and truly achieve the aim of the U.S. Constitution, at last.