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Legal Protection for Fashion Design Emily S NORTH CAROLINA LAW REVIEW Volume 86 | Number 1 Article 5 12-1-2007 Double-Edged Scissor': Legal Protection for Fashion Design Emily S. Day Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Emily S. Day, Double-Edged Scissor': Legal Protection for Fashion Design, 86 N.C. L. Rev. 237 (2007). Available at: http://scholarship.law.unc.edu/nclr/vol86/iss1/5 This Comments is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. Double-Edged Scissor': Legal Protection for Fashion Design* INTRO DUCTION .......................................................................................... 237 1. CURRENT PROTECTION FOR FASHION DESIGN ............................... 245 A. Copyright of Decorative Elements Separablefrom Their Useful Function ....................................................................... 245 B. Elements of Designs: Fabric Patternsand Dress Designs..... 247 C. Trademark ............................................................................... 248 D . Trade Dress ............................................................................. 249 E . Design Patents......................................................................... 250 II. DESERT-BASED THEORY ................................................................ 252 III. ECONOMIC-BASED THEORY ........................................................... 259 A. Recognizable Luxury Designers Limitation............................. 261 B. Potentialfor Lower-Priced Bridge Lines ................................ 262 C. Clearly Inferior Copies Limitation.......................................... 264 IV. FASHION DESIGN PROTECTION: E.U. DIRECTIVE 98/71/EC AND H .R . 5055 ........................................................................................265 A. E. U. Directive 98/71/EC.......................................................... 266 B . H.R . 5055 .................................................................................268 V. PRIVATE FASHION DESIGN RIGHT .................................................. 269 C O N CLU SIO N .............................................................................................. 272 INTRODUCTION This,"stuff?" Oh, ok. I see, you think this has nothing to do with you. You go to your closet and you select out, oh I don't know, that lumpy blue sweater, for instance, because you're trying to tell the world that you take yourself too seriously to care about what you put on your back. But what you don't know is that that sweater is not just blue, it's not turquoise, it's not lapis, it's actually cerulean. You're also blindly unaware of the fact that in 2002, Oscar De La Renta did a collection of cerulean gowns. And then I think it was Yves Saint Laurent, wasn't it, who showed cerulean military jackets? And then cerulean quickly showed up in the collections of eight different designers. And then it filtered down through the department stores and then trickled on down into some tragic Casual Corner where you, no doubt, fished it out of some clearance bin. However, that blue represents millions of dollars and countless jobs * Copyright © 2007 by Emily S. Day. 1. Olivera Medenica, Designers Seek To Prevent Cheaper Knockoffs, NAT'L L.J., Aug. 28, 2006, at S I. NORTH CAROLINA LAW REVIEW [Vol. 86 and it's sort of comical how you think that you've made a choice that exempts you from the fashion industry when, in fact, you're wearing the sweater that was selected for you by the people in this room. From a pile of "stuff."2 This memorable quote from the Academy Award-nominated film The Devil Wears Prada implies two major themes of the fashion design industry: the fashion design industry affects everyone, even if indirectly, and it exists in an environment of constant copying and counterfeiting.' Designers have long sought protection against copying, but it has been denied largely because fashion designs have been viewed as more closely related to useful articles-clothing 4-than to creative works and because copying was described as economically beneficial to designers. This Comment suggests that those arguments are flawed or can be weakened by appropriately tailored protection and proposes a solution that would both protect fashion designers as well as satisfy the opponents of protection. The numbers reinforce the theme illuminated by the quote from The Devil Wears Prada-thefashion industry affects everyone. The size of the international apparel industry is astonishing, producing more than $750 billion in sales annually.5 The U.S. fashion design industry alone is a $350 billion industry.6 According to the U.S. Chamber of Commerce, "[t]he production, distribution and sale of unauthorized goods has cost U.S. companies between $200 and $250 billion each year as well as 750,000 jobs to date."7 More pertinently, losses due to counterfeiting in the clothing and footwear industries combined have been approximately $12 billion annually.8 This counterfeiting translates into lost revenues for both designers and the government; New York alone estimates its losses due to 2. THE DEVIL WEARS PRADA (20th Century Fox 2006). 3. In this Comment, "counterfeit" means a copy that is already illegal under the existing limited protection scheme for fashion designs, such as a handbag with the Louis Vuitton "LV" logo or a dress with a Diane von Furstenburg fabric pattern printed on it. A "copy" or "knockoff' means a copy of an original design sold by another producer such as the A.B.S. dresses appearing infra pages 240-41. See Eric Wilson, The Knockoff Won't Be Knocked Off, N.Y. TIMES (Week in Review), Sept. 9, 2007, at 5 (defining "counterfeits" and "knockoffs" in the same way). 4. See infra notes 39-41 and accompanying text (discussing the refusal of copyright protection for functional articles, which are distinguished from artistic items). 5. See Safia A. Nurbhai, Comment, Style Piracy Revisited, 10 J.L. & POL'Y 489, 489 (2002) (estimating total apparel sales of $784.5 billion in 1999). 6. Jacqueline Palank, Congress Considers Fashion's Copyrights, WASH. TIMES, July 28, 2006, at C10. 7. Id. 8. A Bill To Provide Protection for Fashion Design: Hearing on H.R. 5055 Before the Subcomm. on Courts, the Internet, and Intellectual Property of the H. Commn. on the Judiciary, 109th Cong. 2 (2006) [hereinafter Hearing on H.R. 5055] (statement of Rep. Howard L. Berman, Ranking Member, Subcomm. on Courts, the Internet, and Intellectual Property). 20071 LEGAL PROTECTION FOR FASHION DESIGN counterfeiting total more than $1 billion in tax revenue annually.9 Without protection, copying in the fashion industry is so prevalent that "knocking off big-name designers is as intrinsic to the global fashion industry as the two Cs in its logo are to Chanel."' 10 The reason behind the unchecked copying in the U.S. fashion industry is the inability of fashion designers to seek legal protection for their creations. As a result, there are a number of American firms who generate a substantial part of their revenue from designs intentionally created to knock off the high-priced runway and red carpet fashions. For example, Allen B. Schwartz of A.B.S. has openly conceded that "he will watch fashion events such as the Academy Awards telecast, sketch the dresses that the stars parade down the red carpet, and 'the next day decide which of the gowns will be adapted or interpreted.' "" Several A.B.S. dresses are included below, alongside their red carpet original designs, to illustrate the 2 nearly identical nature of these entirely legal A.B.S. copies.' 9. Robin Givhan, Congress May Knock Out Knockoffs, NEWS & OBSERVER (Raleigh, N.C.), Aug. 13, 2007, at 3C. The statistics above likely do not include knockoffs since they are not illegal under current law and therefore do not represent the full economic harm felt by fashion designers under the current law. Id. (using "black market goods" in following sentence which seems to limit "counterfeiting" to its meaning in this Comment-already illegal copies-and therefore limiting the statistic in the same way). 10. Georgina Safe, Fraudsterswith Fabrics,WEEKEND AUSTRALIAN, Jan. 22, 2005, at 26. 1I. Samantha L. Hetherington, Fashion Runways Are No Longer the Public Domain: Applying the Common Law Right of Publicity to Haute Couture Fashion Design, 24 HASTINGS COMM. & ENT. L.J. 43,45 (2001). 12. Star Style: Golden Globes: Win a Look!, US WEEKLY, Feb. 5, 2007, at 76-77 (pages from Us weekly, February 5, 2007, © Us weekly LLC 2007, All Rights Reserved, Reprinted by Permission and individual photographs reprinted with permission of Abaca (Jolie), John Paschal International (Barrymore), Landov (Cruz), and Splash (Hatcher)). These A.B.S. copies are sold directly alongside the original in stores such as Nordstrom and Neiman Marcus. NORTH CAROLINA LAW REVIEW [Vol. 86 Want award--winning elegance? Enter to score one 20071 LEGAL PROTECTIONFOR FASHION DESIGN of these A-list ensembles that will leave you feeling red carpet ready PENELOPE TERI LCRUZA HATCHER Y- Stud u Ieathr I Cra us,Dasi p ptue e~atther Lad~s sanda~s$2, 7 57~eor NORTH CAROLINA LAW REVIEW [Vol. 86 Another knockoff example is the dress designed by Narcisco Rodriguez for Carolyn Bassette Kennedy. An estimated eight million copies were sold before Rodriguez could produce the dress for
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