Fashioning the Law of Design

Thanks to Joan and Jordan Leibman
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11/11/08 - The Valuation of Art
11/9/07 - The Business of Art and the Art of Business
11/14/06 - Art Forgery and Fraud
11/11/05 - What's In Your Portfolio?: Art as an Asset Class
10/4/04 - Crises in the Protection of Archaeological Heritage: Iraq and Afghanistan

Beth Bennett Beth Bennett Couture

Kenan L. Farrell
Intellectual Property and Entertainment Law
[email_address]
www.KLFLegal.com
(c) Kenan L. Farrell 2010

“ Intellectual property protection is necessary to stimulate creativity and innovation.”

-The Ecology of Creativity in Fashion

"Fashion should slip out of your hands. The very idea of protecting the seasonal arts is childish. One should not bother to protect that which dies the minute it is born.”
-Coco Chanel

Intellectual Property
Patent
Trademark
Copyright
Trade Dress
Moral Rights

U.S. Constitution, Art. I, Sec. 8 – The Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

Copyright 101
Copyright are exclusive rights granted to the creator of an “original work of authorship fixed in any tangible medium of expression”
Bundle of Rights
1) reproduction of the work
2) preparation of derivative works
3) distribution of copies of the work
4) public performances of the work
5) public display of the work.
(c) Kenan L. Farrell 2010

All images and text in the presentation are used for purposes such as:
criticism
comment
news reporting
teaching
scholarship
research

Copyright 101
No copyright protection for “useful articles,” that is, goods in which creative expression is compounded with practical utility.

Copyright 101
Copyright does extend to "features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”

Trademark 101
A trademark is a 1) distinctive sign or indicator 2) used to identify products or services as originating from a unique source, and 3) to distinguish its products or services from those of other entities.
Reduces consumer confusion
Reduces unfair competition

Design Copying

Remedies for copyright infringement are easier to prove and much harsher than trademark infringement

Trademark Checklist
Get your domain name(s), Facebook username, Twitter account, etc.
At bare minimum, do a Google search for similar marks
When budget permits, seek federal registration
Always use a proper trademark notice (™ for common law rights, ® if you’ve obtained registration)

Patent 101
“ Design patent” - 14-year term of protection for “new, original, and ornamental designs for an article of manufacture.”
The filing fee for a design patent is $100, the issue fee is $400, and the maintenance fees over the life of the patent are $3,500.
Applying for a design patent can take several years, which exceeds the life expectancy of the market for many designs.

Increasing Use of Patents
Innovations in the creation of synthetic fabrics have increased the prevalence of patents.
A patent portfolio reflects technologies for the creation of, for example, crease and weather-resistant fabrics.

Fashion Industry 101 $750 billion of apparel sold annually worldwide U.S. Fashion Industry - $350 billion U.S. Music Industry - $66 billion U.S. Film Industry - $28 billion

Giorgio Armani (Armani) - $4.1 billion Ralph Lauren (Polo) - $3.6 billion Rosalia Mera (Zara) - $3.5 billion (richest non-Chinese woman) Giuliana Benetton (Benetton) - $2.5 billion Miuccia Bianchi (Prada) - $1.4 billion Doris Fisher (Gap) - $1.3 billion

Fall shows are held during consecutive weeks in February and March, first in New York, then London, then Milan, and finally, in Paris. Spring shows are held during consecutive weeks in September and October, in the same cities and order. Midwest Fashion Week – March 2011

Models
Photographers
Buyers
Purchasing agents
Retail salespersons
Stylists
Demonstrators and product promoters
Textile, apparel, and furnishings occupations

-Bureau of Labor Statistics

ABS Allen Schwartz. Knockoffs of red-carpet gowns

Fashion Originator’s Guild 1932-1941
1941 - Fashion Originators’ Guild of America v. Federal Trade Commission - the Supreme Court held the Guild’s practices to be unfair competition and a violation of the Sherman and Clayton Acts.

Cyclical - styles fall out of fashion and are replaced, often seasonally, by new styles

Positional goods - goods whose value is closely tied to the perception that they are valued by others
The value of a positional good arises in part from social context

Anchoring
The process by which the industry converges on a few major design themes, or trends, during a fashion season – colors, whether skirts are fitted or flowing, or cuffs are wide or slim
The mechanism by which the fashion industry signals to consumers that trends have changed, and it's time to update the wardrobe.

Innovative Design Protection and Piracy Prevention Act (S.3728)

Who wants it?

Protection for fashion designs would be automatic. No registration requirement.
Short, three-year protection against “substantially identical” designs.
Must be “non-trivial” variation over prior designs

c) Acts without Knowledge. — It shall not be infringement under this section to make, have made, import, sell, offer for sale, advertise, or distribute, any article embodying a design which was created without knowledge either actual or reasonably inferred from the totality of the circumstances, that a design was protected under this chapter and was copied from such protected design.

Substantial similarity  Access  Ownership 

§1327. Penalty for false representation Whoever knowingly makes a false representation materially affecting the rights obtainable under this chapter [17 USC § §1301 et seq.] for the purpose of obtaining registration of a design under this chapter or for purposes of obtaining recovery based on a claim of infringement under this chapter [17 USC § §1301 et seq.] shall pay a penalty of not less than $ 5,000 and not more than $ 10,000 , and any rights or privileges that individual may have in the design under this chapter [17 USC § §1301 et seq.] shall be forfeited.

Be careful what you ask for
Unintended consequences
Increased regulation can create a situation where everyone has rights but only the wealthy and powerful can exert them

INDIANA
Art Institute, Harrison College, Indiana University, Purdue University and Ball State University
IMA Fashion Arts Society
Fashion, Art & Design Law Society
Indianapolis Fashion Collective

Resources
Innovative Design Protection and Piracy Prevention Act, S. 3728
The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, Virginia Law Review, Vol. 92:1687
Chanel or Fauxnel? The Chanel Jacket…Unraveled ( http://www.learcenter.org/pdf/RTStranscript.pdf )
Between the Seams, A Fertile Commons: An Overview of the Relationship Between Fashion and Intellectual Property ( http://www.learcenter.org/pdf/RTSJenkinsCox.pdf )
The Ecology of Creativity in Fashion (http://www.learcenter.org/pdf/RTStranscript.pdf)

For me, the moment I'd finished it, nothing made me happier than seeing copies of what I had done, because that meant I'd done the right thing.
-Tom Ford

Trade Dress
Trade dress involves the total image of a product . . . size, shape, color, color combinations, texture, graphics.
Limited to non-functional design elements
Limited to design elements that are “source designating,” rather than merely ornamental

§ 106A. Rights of certain authors to attribution and integrity
(a) Rights of Attribution and Integrity.— Subject to section 107 and independent of the exclusive rights provided in section 106 , the author of a work of visual art— (1) shall have the right— (A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and
(3) subject to the limitations set forth in section 113 (d) , shall have the right—
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

Fashioning the Law of Design

by Kenan L. Farrell on Nov 09, 2010

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Fashioning the Law of Design — Presentation Transcript