Let Them Have Purses

There are those who are opposed to attempting to protect the intellectual property rights of fashion of designers. They argue that affording designers these rights is akin to trying to kill the fashion industry. They argue that passing such a bill like the Design Piracy Prohibition Act will only serve to protect elite designers and keep prices on couture designs unreasonably high for the average consumer: “However, some scholars hope that the United States will resist the international pressure, arguing that the framework of free copying in this country actually benefits the fashion industry as whole more than the stricter laws of Europe.” Laura C. Marshall, Catwalk Copycats: Why Congress Should Adopt a Modified Version of the Design Piracy Prohibition Act, 14 J. Intell. Prop. L. 305, 309 (2007).

Those opposed to stricter intellectual property protection for fashion design argue that piracy actually induces more creativity and economic growth. They argue that the fashion industry tends to remain stable in a ‘low IP equilibrium’ Id. at 320. Since piracy involves diffusing the designs of elite couture houses to a larger audience that normally would not have access to these designs, it makes the exclusivity factor of the designs obsolete to the elite clientele of the creators of the designs.

There is a seesaw of induced obsolescence and trend anchoring: “Induced obsolescence is the phenomenon by which trends become distasteful to their initial, wealthy, customers as knockoffs of these trends ‘diffuse to a broader clientele’ at cheaper prices.” Id. The designers are put into a situation where they must constantly be creative in order to keep up with this clientele: “Widespread copying drives the elite fashion houses to create more new designs as the trend-of-the-moment becomes defunct.” Id. Proponents in favor of preventing designers from intellectual property rights for their designs claim that this constant need for new designs will help spur creativity and also aid them in more sales of their designs.

Trend anchoring is a concept that is intrinsically tied to copying and piracy in the fashion industry: “Raustiala and Sprigman argue that this phenomenon of trend anchoring, brought by ‘free appropriation’ among designers, is a key element of the fashion economy. Design houses tolerate copying, knowing that they may be the ones borrowing the idea the following season.” Id. at 321. Trends help consumers identify the items that they must have for the season in order to be fashionable. It helps bridge the gap between needs and desires.

Trends also benefit the designers since they induce the consumer to believe that their designs are a necessity: “Anchoring allows consumers to identify discernible trends of each season; a firmly established trend then becomes the “must have” item of the season, and fashion designers throughout the industry benefit from this trend driven consumerism.

One of this year's must have items: Tory Burch's Reva Flat

While these arguments are certainly plausible and justifiable, they also recognize one important factor: that the designs created by fashion designers are creative works. While the creative works that they create are useful, there is a requisite “spark of creativity”. Feist Publ’n Inc. v. Rural Tel. Serv., 499 U.S. 340 (1991).

Notice how the Tory Burch flat has a "spark of creativity", but how it also borrows from other designer signatures. For example, the basketweave leather work is indicative of Bottega Veneta. If we grant Ms. Tory Burch property rights for this design, can Bottega Veneta claim infringement for this use of basketweave leather?

Where do we draw the line between designs that are in the public domain and designs that are protected?