Fashion As Art

Individuals in favor of the Design Piracy Prohibition Act have used the idea of creativity as a reason why fashion designs should be included into copyright law in the United States: “Both fashion designers and the public at large consider clothing and accessories to be not only useful articles but also works of creative expression.” Laura C. Marshall, Catwalk Copycats: Why Congress Should Adopt a Modified Version of the Design Piracy Prohibition Act, 14 J. Intell. Prop. L. 305, 321 (2007). . While these works of creative expression have a utilitarian function, most designers work on their designs from a creative standpoint: “Fashion designers frequently describe themselves and their work in artistic terms; they speak of their vision, their vision, their inspiration, the craftsmanship of their clothing, and the theme or message of a particular collection. Many art museums throughout the country, such as New York City’s Metropolitan Museum of Art and Guggenheim Museum, maintain temporary or permanent fashion exhibits alongside their fine art collections.” Id. at 323-324.

There is a type of discrimination present among what copyright law deems as worthy of protection. Why is it that other creative industries are afforded protection under the Copyright Act but not the fashion industry? This perception of fashion as art by cultural institutions, the designers themselves and the public should give these designers the same rights as recording artist: “[T]he perception of fashion as art suggests that designers should receive intellectual property rights comparable to those of their peers in other creative industries.” Id. at 323. Unfortunately, this perception does not match the reality of the intellectual property arena of the United States: “Yet, while U.S. copyright law provides protection to visual artwork with non-utilitarian functions, architectural designs, and even boat hulls, the law does not protect clothing designs.” Id. at 324.

Here is an excerpt from a New York Times article that shows that art and fashion do indeed go together: "Andy Warhol may have been one of the first to recognize that a little bit of art and a little bit of commerce go a long way, but a new exhibition of Takashi Murakami's work at the Museum of Contemporary Art in Los Angeles takes Warhol's modus operandi to a new level. Aside from showcasing a complete retrospective of Murakami's anime-inspired graphic art, the exhibition will include items from his past collaborations with Louis Vuitton -- and a 1,000-square-foot Vuitton mini-boutique on the museum's mezzanine floor. "

This is the link to the full article: http://query.nytimes.com/gst/fullpage.html?res=9B07EED81E31F934A35753C1A9619C8B63&scp=2&sq=murakami%2C+art&st=nyt

While the clothing design itself is not granted copyright protection, the sketch of a fashion design is. This indicates that there is a lack of developed American jurisprudence to handle the sophisticated requirements of art in fashion and reconcile them with the utilitarian functionality of fashion: “Under current copyright law, a two-dimensional sketch of a fashion design garners copyright protection as a pictorial work. However, artists lose all copyright protection as soon as they render the sketches into three dimensional garments because clothing is not normally considered to have separable elements.” Megan Williams, Fashioning a New Idea: How the Design Piracy Prohibition Act Is a Reasonable Solution to the Fashion Design Problem, 10 Tul. J. Tech & Intell. Prop. 303.

This approach to copyright protection seems to be ill fitted with the Supreme courts ruling on mass produced, industrially designed products: “Mazer v. Stein granted copyright protection to a lamp because the sculptured lamp base was found to be a ‘work of art’ separable from the objects primary use as a lighting fixture. For the first time, the Court granted copyright protection to an industrially designed, mass produced product.” Id. at 309-310. However, in spite of this ruling by the Supreme Court, American jurisprudence refuses to extend this to dress designs. This is because a design’s artistic elements can not be separated from the utilitarian use of the garment. Id.

Yet, look at some art inspired fashion:

This is the work Murakami (who is a well known artist inspired by popular culture) did for Louis Vuitton for its handbags.

This is a piece called "For Miuccia Prada" by John Baldessari. He is part of a program that is patronized by Prada that combines art with Prada's spaces.

In the House Committee hearing for the Design Piracy Prohibition Act, it was contended that this refusal to incorporate fashion design into copyright law actually goes against the natural intention of copyright law: “A law professor at the same subcommittee meeting stated that it ‘is the constitutional intent of copyright law to promote and protect the development of creative industries by ensuring that creators are the ones who receive the benefit of their own intellectual investments.’ Allowing fashion designs to be protected by copyright does not violate the theoretical basis for copyright protection.” Id. at 312.

Based on some of the images here, it would be a safe contention to say that there is that requisite spark of creativity in the development of fashion designs. However, based on the transient world of fashion seasons, it will be tricky to fit fashion IP into the world of copyrights.