More on Fashion Copyrights

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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