Fashion Protection

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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5 Responses

  1. Shag from Brookline says:

    Is Mrs. B wearing a sleeveless toga with pockets? {Please, no vaudeville jokes like “Who’s got pockets?” Take a pass on that.]

  2. Bruce Boyden says:

    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.

  3. Gerard Magliocca says:

    It’s an interesting empirical question. My impression was that the architectural copyright was mostly about derivative works, but maybe I’m wrong.

  4. Dave says:

    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.

  5. Dan Cole says:

    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.”