Fashion Protection
posted by Gerard Magliocca
Much like Jason in “Friday the 13th,” the idea of having a federal statute to protect fashion designs never dies. I’ve posted before about why I think that kind of measure is unnecessary and would be a bad idea, but Professor Jeannie Suk had an op-ed in the NY Times on Sunday arguing once again for this proposal.
One way to think about this is to look at the Architectural Works Copyright Protection Act, which was enacted in 1990. Prior to that time, architecture (like fashion) was generally unprotected and the incentives for architects came from what they got paid for executing a commission. If people wanted to sell merchandise depicting a building, they could do so freely. Now that isn’t true, though in practice most buildings have a copyright value of zero.
Here’s are some questions. Is architecture better as a result of these new copyright incentives? Or was this just a measure that redistributed wealth from average folks to a few well-known architects? The latter isn’t a compelling rationale and, in my view, that’s all that would happen if Congress enacts fashion design protection.
(BTW, the Super Bowl is coming to my hometown, hence I thought that the photo of Mrs. Brady was appropriate.)
January 26, 2012 at 8:58 am
Posted in: Intellectual Property
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Responses (5)
Shag from Brookline - January 26, 2012 at 10:09 am
Is Mrs. B wearing a sleeveless toga with pockets? {Please, no vaudeville jokes like “Who’s got pockets?” Take a pass on that.]
Bruce Boyden - January 26, 2012 at 10:35 am
This is unconnected to any methodical analysis of the facts, but my impression from the cases I see is that the primary enforcers of architectural copyrights are not well-known architects, but large-scale subdivision homebuilders who are trying to protect a particular pattern allegedly infringed by a competing large-scale subdivision homebuilder. I expect we would likely see the same pattern under fashion protection. Most of the action would not be over haute couture designs, but from K-Mart and the Gap. The redistribution issue is not quite as sharp in that case, I think, but there may be other issues — administrability being the chief one that comes to mind.
Gerard Magliocca - January 26, 2012 at 12:43 pm
It’s an interesting empirical question. My impression was that the architectural copyright was mostly about derivative works, but maybe I’m wrong.
Dave - January 26, 2012 at 3:20 pm
Related to Bruce’s point, while it’s unclear whether the ’90 Act increased the quality of architecture, one thing that I think is clear (based, admittedly, on my casual empiricism about the ratio of cases in BNA and other sources) is that the number of cases involving architecture is high relative to other categories of works of authorship. The reason may be that developers are well-heeled and concerned about squelching competition however they can. Copyright for architectural works has, I think, been more about regulating/suppressing competition than protecting truly original and expressive works. There are some cases to the contrary (Sturdza, Shine), but I think these are by far the exception.
Dan Cole - January 26, 2012 at 9:44 pm
I wonder whether anyone can point to a single major clothing designer that has gone out of business primarily (or even secondarily) because of competition from producers of “knock offs.”
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