Fashion: Utilitarian or Worthy of Protection?

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 Elie Saab dress design sketch would be protected under current U.S. copyright law, but the resulting physical dress from this sketch would not be protected. 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.

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.

This law professor is none other than the author of another blog called Counterfeit Chic. You can find her blog link on the right hand side of this blog. I agree with Ms. Scafidi. However, there is a fine line that can be crossed when it comes to enforcing the rights of designers to their creative designs. How can a court decide when a design is simply utilitarian and when it is truly creative? How long can a design be protected for? Due to the cyclical nature of fashion as well as the number of seasons, is it really fair to afford protection on designs for more than a season? How can a designer actually enforce these protections?