Why Fashion Designs Aren't Protected by Intellectual Property in the U.S.
Unlike other creative industries like music, literature, and technology, fashion designers face unique challenges when seeking legal safeguards for their artistic creations. Let's take a look at some of the reasons behind this puzzling reality and some suggestions on what you can do to protect your creativity despite the limitations.
Functionality vs. Aesthetic Expression
One of the primary reasons fashion designs lack intellectual property protection is the delicate balance between functionality and artistic expression. Unlike a painting or a novel, clothing serves a utilitarian purpose, and courts have long grappled with distinguishing the functional aspects of a design from its aesthetic elements. In the U.S., copyright law explicitly excludes "useful articles" from protection, meaning that fashion items that have utilitarian aspects are not eligible for copyright protection.
Lack of Novelty and Originality
Intellectual property protection, particularly copyright and design patents, require a certain level of novelty and originality. Fashion, by its very nature, is inspired by history, culture, and trends. Many designs are reinventions or reinterpretations of existing elements, making it challenging to meet the strict criteria of novelty required for protection.
The Fast-Paced Fashion Industry
Fashion is known for its rapid cycles of creativity and innovation. The rise in fast fashion only makes this more of a challenge. By the time a legal process for protection is completed, the trend might have already faded away! The current pace of the fashion industry doesn't align well with the often lengthy and complex intellectual property application and enforcement processes.
The Copycat Culture
Fashion designs are easily replicable, and this has given rise to a prevalent copycat culture, especially in the U.S. While blatant counterfeits are illegal, imitations that merely draw “inspiration” from popular designs are difficult to police under current U.S. intellectual property laws. Some argue that this imitation fosters competition and encourages creativity, while others view it as detrimental to independent designers who invest time and effort into creating original works.
Free Expression and Innovation
The absence of strong intellectual property protection for fashion designs fosters a culture of free expression and innovation. Designers are encouraged to draw inspiration from various sources, leading to a diverse and dynamic fashion landscape. Advocates of this approach argue that a lack of rigid intellectual property laws allows fashion to be more accessible and democratic.
Lobbying and Industry Influence
The absence of comprehensive intellectual property protection for fashion designs is also influenced by lobbying efforts and the fashion industry's interests. Some major fashion players argue against stricter protection, as they believe it could stifle creativity and increase costs.
What You Can Do
While the lack of robust intellectual property protection for fashion designs remains a hot topic, there are certain protections that go overlooked by fashion designers. For example, though a designer may not exclusively own their design, they can and should own their brand, by obtaining trademark rights for all sources identifiers that are unique to their brand, including their brand name, logo, taglines, trade dress, colors, and sounds. It’s all about the brand these days, which is why consumers are willing to pay over $25,000 for a Birkin bag, but not willing to pay anything close to that for an imitation bag (in most cases).
Another huge opportunity for protection for fashion designers is ensuring they have the proper contracts in place - and this goes beyond an NDA template you found online! As an entrepreneur, you should have a contract in place with every single person you work with - from your interns, salespeople, and tailor, to the big brands looking to strike a licensing deal with you. Contracts can make or break your business.
I hope this articles sheds some light on why fashion designs are largely unprotected by U.S. law and the ways you can protect yourself despite the challenges! Have other questions you’d like me to answer? Shoot me an email at info@thecloudlawfirm.com and we may feature it here!
Until the next time!
