More on Fashion Copyrights

by on October 14, 2006 · 8 comments

Our spam filter caught a comment from my post earlier this week about fashion copyrights. I think it’s worth reproducing verbatim:

There’s an interesting discussion of the issue over at AntitrustProf Blog. If you buy the notion that it’s a good idea to protect boat hull designs, then why not extend protection to fashion? On the other hand, if we protect boat hull designs and dresses, why not patent storylines and plots, or extend copyright to protect a hairdo. Maybe Tyra Banks can gain IP protection for her figure (not just her persona, but her figure). In order to protect himself against infringement, Walter Payton should be able to secure the rights on his running moves, so no NFL rookies will be able to steal from him. Getting back to reality, protection of industrial designs is not new. The Copyright Office prepared an interesting report about proposed protections for fashion design. They conclude with this:
As stated above, the Office does not yet have sufficient information to make any judgment whether fashion design legislation is desirable. Proponents of legislation have come forward with some anecdotal evidence of harm that fashion designers have suffered as a result of copying of their designs, but we have not yet seen sufficient evidence to be persuaded that there is a need for legislation. We look forward to the Subcommittee’s hearing, at which proponents of the legislation will have an opportunity to make their case and at which the voices of other affected parties can be heard.

It is worth noting that the fashion industry has tried to gain IP protection for a long time. They tried the courts, but that didn’t work. Cheney Brothers v. Doris Silk Corp. was decided in 1929. As Judge Learned Hand put it in the opinion:
To exclude others from the enjoyment of a chattel is one thing; to prevent any imitation of it, to set up a monopoly in the plan of its structure, gives the author a power over his fellows vastly greater, a power which the Constitution allows only Congress to create…
I find it a bit ironic that a 2003 opinion piece by David Bollier and Laurie Racine made the case that the massive economic success and vibrant creativity of the fashion industry is due to the fact that it is not impeded by IP protections. If the lords of fashion get what they want, in a few years they may find themselves hankering for the bad old days.

All good points. Thanks to Erik for making them.

Derek Slater also made a good comment to Tom Bell’s post last week about Internet gambling. My apologies for not approving the comment sooner.

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About Tim Lee

Timothy B. Lee (Contributor, 2004-2009) is an adjunct scholar at the Cato Institute. He is currently a PhD student and a member of the Center for Information Technology Policy at Princeton University. He contributes regularly to a variety of online publications, including Ars Technica, Techdirt, Cato @ Liberty, and The Angry Blog. He has been a Mac bigot since 1984, a Unix, vi, and Perl bigot since 1998, and a sworn enemy of HTML-formatted email for as long as certain companies have thought that was a good idea. You can reach him by email at leex1008@umn.edu.

Read more articles by Tim Lee.

  • http://www.maclawstudents.com Erik

    I wonder what triggered the spam filter. Thanks for catching it and taking the time to comment back, Tim.

  • http://www.techliberation.com/ Tim

    Our spam filter catches comments with a lot of links. We need to find better anti-spam software.

  • http://www.blogger.com/profile/14019452 Steve R.

    In the on-going discussion on copyright and patents, we seem to overlook the fact that designs are subjective and differences are subtle. Tim on various occasion has comment on the need for clearly defined property boundaries if we are to have laws that mean anything.

    The Copyright Office reference cited by Tim notes:“The Office has no expertise in the design of vessels and cannot judge what is “original” in a vessel hull design. Moreover, the statute offers no clear guidance that would assist the Office in judging what is “attractive or distinctive” to the public in a vessel hull design.. In terms of fashion design would a new floral print with a four-petal design be sufficiently different from an existing floral print of five petals to constitute an original design? I bet the four-petal copyright holder would say no, whereas the five-petal designer would say that it is substantially different in attractiveness and would constitute original work.

    The potential to be endlessly embroiled in lawsuits over subtle and subjective interpretations of what constitutes “new” hardly fosters innovation. Furthermore, from the perspective of an innovator, with limited financial resources, the threat of legal action could constitute a significant barrier to entering a market.

  • http://www.maclawstudents.com Erik

    I wonder what triggered the spam filter. Thanks for catching it and taking the time to comment back, Tim.

  • http://www.techliberation.com/ Tim

    Our spam filter catches comments with a lot of links. We need to find better anti-spam software.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    In the on-going discussion on copyright and patents, we seem to overlook the fact that designs are subjective and differences are subtle. Tim on various occasion has comment on the need for clearly defined property boundaries if we are to have laws that mean anything.



    The Copyright Office reference cited by Tim notes:“The Office has no expertise in the design of vessels and cannot judge what is “original” in a vessel hull design. Moreover, the statute offers no clear guidance that would assist the Office in judging what is “attractive or distinctive” to the public in a vessel hull design.. In terms of fashion design would a new floral print with a four-petal design be sufficiently different from an existing floral print of five petals to constitute an original design? I bet the four-petal copyright holder would say no, whereas the five-petal designer would say that it is substantially different in attractiveness and would constitute original work.

    The potential to be endlessly embroiled in lawsuits over subtle and subjective interpretations of what constitutes “new” hardly fosters innovation. Furthermore, from the perspective of an innovator, with limited financial resources, the threat of legal action could constitute a significant barrier to entering a market.

  • http://weblog.ipcentral.info/ Noel Le

    Clearly defined property boundaries have limited applicability in policy analysis. To rely on this argument too much ignores the characteristics of innovation in various industries and markets is another.

    It is widely observed that technological innovations are covered by many patents. To say that this complexity for IP negotiations, licensing and litigation outweighs the beneifts of patents is Tim’s argument. This might make sense with fashion copyrights, but with other fields, his approach does not work. It leads him to argue that mere claim construction (high-level functional descriptions) found in software patents is sufficient justification to eliminate patents for software altogether.

  • http://weblog.ipcentral.info/ Noel Le

    Clearly defined property boundaries have limited applicability in policy analysis. To rely on this argument too much ignores the characteristics of innovation in various industries and markets is another.

    It is widely observed that technological innovations are covered by many patents. To say that this complexity for IP negotiations, licensing and litigation outweighs the beneifts of patents is Tim’s argument. This might make sense with fashion copyrights, but with other fields, his approach does not work. It leads him to argue that mere claim construction (high-level functional descriptions) found in software patents is sufficient justification to eliminate patents for software altogether.

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