Copyright for fashion designs

     The fashion industry seems to have become a perfect demo of when intellectual property protection is not necessary to stimulate innovation.

     Currently in the US, fashion designers (apparel designers in particular) have only limited legal protections for their designs. Among the 4 major areas of intellectual property protection (copyright, patent, trademark / trade dress, and trade secret), none is effective for fashion designers, although copyright seems to have the best potential. I am going to focus on copyright in this post.

     Generally speaking, fashion designs MAY be protected by copyrights, just like a sculpture. (Click on the thumbnail to check out some wonderful designs. They do resemble fine sculptures.) The problem is we human beings wear apparels to cover ourselves day in and day out. Apparels carry a utilitarian function not shared by a piece of fine sculpture. For this reason, the Congress and courts have been reluctant to grant full protection to fashion designs, for fear that too much protection would cripple the commerce in apparels and consequently hurt our standard of living.

     As a result, only the portion of fashion designs that can be separated from the utilitarian function of clothing (that is, to cover up our bodies) can be protected by copyrights. That all sounds fine, except the Congress never clearly tells us in the copyright law how we can go about making the "separation". Thus, it will be up to the courts -- which means confrontation, hostility, wasted time & money, and uncertainty. Most fashion designers don't think the benefit is worth the hassles.

     What is interesting is that despite the lack of effective intellectual property protections, innovation is not wanting in the fashion industry. (Just watch those fascinating gowns and dresses displayed in fashion shows and stores!) This poses an interesting question: If innovation is not lacking in fashion design, why should we worry about the ineffectiveness of intellectual property protections, which aim to stimulate innovation anyway?

     Innovation in the fashion designs has not suffered for 2 reasons: One, innovative fashion designs still commands very high premiums in the high-end market; and two, a design's value drops precipitously after just one season. So, high-fashion designers can bring in sufficient profit from one design, but only for a very short period of time. They must continue to innovate to sustain the business. Protecting the less-valuable older designs is relatively unimportant.

     But, what if the high-fashion market gets more and more competitive? What if the premiums for high-fashion designs decrease significantly? What if the mid-end market becomes an indispensable segment for fashion design houses to sustain the business? Will innovation wither when profits shrink?

     And, what about protections for the young designer dreaming about establishing herself by innovating for the mid-end market, which commands lower premiums? What about the need of mid-end and low-end markets for innovative designs (which people actually dare wear daily)?

     Something to think about!