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Fashioning the Law of Design

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Legislation pending before Congress would give designers intellectual property rights over their designs for the first time in U. S. history.

Will this help or hinder the fashion industry? Will designers finally be able to prevent unauthorized reproductions? Or will their creativity be hobbled if they can’t borrow inspiration from each other?

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Fashioning the Law of Design

  1. 1. ThankstoJoanandJordanLeibman PreviousForums 9/25/09 - The Art of Hope: a panel discussion on Imani Workshops 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
  2. 2. BethBennett BethBennettCouture
  3. 3. Kenan L. Farrell Intellectual Property and Entertainment Law kfarrell@klflegal.com www.KLFLegal.com (c) Kenan L. Farrell 2010
  4. 4. “Intellectual property protection is necessary to stimulate creativity and innovation.”
  5. 5. -The Ecology of Creativity in Fashion
  6. 6. "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
  7. 7. Intellectual Property Patent Trademark Copyright Trade Dress Moral Rights
  8. 8. 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;
  9. 9. 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
  10. 10. All images and text in the presentation are used for purposes such as: •criticism •comment •news reporting •teaching •scholarship •research
  11. 11. Copyright 101 No copyright protection for “useful articles,” that is, goods in which creative expression is compounded with practical utility.
  12. 12. 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.”
  13. 13. 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
  14. 14. Design Copying
  15. 15. Remedies for copyright infringement are easier to prove and much harsher than trademark infringement
  16. 16. 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)
  17. 17. 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.
  18. 18. 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.
  19. 19. 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
  20. 20. 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
  21. 21. 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
  22. 22. Models Photographers Buyers Purchasing agents Retail salespersons Stylists Demonstrators and product promoters Textile, apparel, and furnishings occupations
  23. 23. -Bureau of Labor Statistics
  24. 24. ABSAllenSchwartz.Knockoffsofred-carpetgowns
  25. 25. 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.
  26. 26. Cyclical - styles fall out of fashion and are replaced, often seasonally, by new styles
  27. 27. 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
  28. 28. 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.
  29. 29. Innovative Design Protection and Piracy Prevention Act (S.3728)
  30. 30. Who wants it?
  31. 31. 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
  32. 32. 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.
  33. 33. Substantial similarity  Access  Ownership 
  34. 34. §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.
  35. 35. • 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
  36. 36. 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
  37. 37. 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)
  38. 38. 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
  39. 39. 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
  40. 40. • § 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.

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