Protection for Fashion

Many product developers point to a large gap in the US protection for newly created articles and devices. In particular, product designs receive little coverage from any of the major IP regimes of patent, copyright, & trademark. Today, the fashion industry is the squeaky wheel and may be the most likely to receive sui generis coverage from Congress.  If the Senate Bill becomes law, we may finally have true fashion police.

 

36 thoughts on “Protection for Fashion

  1. Theft of intellectual property is theft, regardless of whether it’s a lousy invention, a lousy design, a lousy book, a lousy movie, a lousy semiconductor chip, a lousy play, a lousy photograph, a lousy boat hull, a lousy dress, or a lousy pair of shoes. If it’s really lousy, no one will bother to copy it. If someone copies it without permission of the originator/author/inventor, there must be a reason, i.e., market value. The fact is that there are many small entrepenurial fashion designers who need entry-level protection for a short period (here, 3 years) so their designs can at least get to the market. Given the 2-week turnaround for the knock-offs, the small designers cannot even recoup their initial investments.

  2. As a general rule, great CAUTION should be taken:
    If you allow picking and choosing what is and what is not IP, that can’t be good for We the People.

    For all the wrong reasons, Special Interests & organized big business lobbyists will eventually win out all the time:
    I.e., SI & OBB will wind up with only their select IP cookies lined up just the way they want, and
    We the People will have none of the IP cookies that promote the general Welfare & the Progress of Science and useful Arts.

    As a general rule, IP, strong IP, and Plenty of it, will serve to enhance and preserve America’s premier global position.

    The UNITED STATES of AMERICA

    * * * WORLD LEADER IN IP * * *

    We hold these truths to be self-evident.

  3. Dear Malcolm,

    My son says I’m a “blogging bully.” Plez forgive me if I hurt your feelings needlessly.

    I hope you don’t take things too personal.
    You deserve, we all (well, almost all) deserve, not to be hurt by bullies like me. But please, keep an open mind. You’ll thank me in the morning.

  4. Dear Malcolm,

    What you said!:
    “I’m a human being with opinions. If I say something is art, then it IS. Everything is art.”

    Hile mine Hitter! I need not, nor am I inclined at this moment, to say more.

    You want to be a dictator. Just be careful of the men in white jackets, and always wear fresh diapers.

    PS: You do dress to the nines, right?

  5. Dear Art Challenged “We the People” (you know who you are):

    IP was never meant to be measured case by case, industry by industry. Would you copyright sci-fi but not biographies?

    The Constitution’s patent clause specifies “useful Arts.” Who can deny that Fashion serves to cover our private parts and our butts. That’s about as fundamentally useful as it gets.

    Art is art, whether worn to adorn or hung in a hall.

    IP is business, just business, nothing more, just like shoemaking or farming (what my grandparents did in the old country) or even less respectful businesses like hookering, or hideous businesses like napalm or anthrax.

    I, just an ordinary kid from The Bronx, am so damn proud to say that my business, the IP business, encompasses “Science and useful Arts.”

    The IP business is based in intellectual and artistic pursuits of ALL sorts; IP is not to be picked at for profit motivated purposes by particular industries’ lobbyists.

    IP, strong IP, is integral with America’s premier global position.

    Picking at IP is like picking piece meal at our Constitution:

    Trim it a little here, ignore a clause there,
    let some lesser freedoms slide on a slippery slope,
    take We the Peoples’ homes for a Mall,
    renege by taking injunctions out of our old and new patents,
    TELL We the People:
    they can’t have rifles,
    can’t assembly without a license,
    can’t worship any goddamn way they want,
    can’t say openly our recent presidents really suck,
    (great line I heard in a movie: “he stopped voting so as not to encourage the bastards”), etc.,

    and before you know it, if we are not careful,

    the great American way of life will be a relic of the past.

  6. ” no one said anything here, there or anywhere about:
    “declining wealth as an additional reason that I need that right to sue.”
    THAT’S YOUR thought, and ONLY YOUR thought.”

    Now you’re revising history (even sooner than I expected). It’s the declining revenues of the fashion industry allegedly faced with a surplus of “uncreative” competition that is cited by that industry as justification for these silly laws.

    So it’s not only “my thought.”

    Moreover, I think if you ask most Americans (sometimes called “voters” or the “public”) what they think of these special laws for the geniuses who brought us the $150 topless thong, those folks are on my side. Even when they’re fully informed.

  7. I find it odd that the argument appears to have come to whether or not fashion is an “art” or benefits society. What about the fact that designs are constant rehashed from other decades and how that fact would interact with “prior art” fashion. In addition, what would the scope of protection be? Would it include colors, patterns and shape? Would it require all the included elements or just a likelihood of confusion? It is my opinion that drawing these lines would be incredibly difficult and halt any new form of fashion IP.

  8. “You don’t believe fashion is an art form”

    Not true. I said that everything is an “art form,” according to the “logic” of your argument.

    “Who are you to dictate what is and what is not art?”

    I’m a human being with opinions. If I say something is art, then it IS. Everything is art.

    The question is: why should the fashion industry get welfare in the form of specially tailored (heh) laws but leave me out in the cold when it comes to sueing someone for copying my “novel” haircut and earings?

    Seriously. If you have a reality-based reason for believing that without special IP protection the “art of fashion” will wither and die, then share it us.

    Unfortunately, I won’t be holding my breath because those facts don’t exist. But go ahead and make them up. Or simply recite the garbage script that the fashion industry provided to you.

  9. Dear Malcolm (I was interrupted by a conference call; please pardon my delay),

    I believe fashion is an art form (even though I wear the same shirt and same jeans with the same suspenders almost every day (but I do have more than one of each – - I’m no pig)).

    You don’t believe fashion is an art form, and I’d guess you dress to the nines.

    Fact of the matter is, this is America, and we both can believe whatever the hell we want even if others believe just the opposite.

    With all due respect, on a personal note, I don’t give a good gosh darn what you believe or don’t believe. In fact I’m rapidly loosing respect for you because you are less funny than you use to be and, despite your evident intelligence, you stubbornly refuse to see any bigger picture even when it’s staring you in the face. So be it. This is America and it takes all kinds.

    Regarding our dialogue, I wrote and you referenced:
    “you want to tell me that someone is going to dictate what is and what is not art?”

    You then wrote:
    “No.
    “I want to tell you that the ‘intellectual property’ that the fashion industry imagines it is ‘creating’ is nothing of the sort.”

    Who are you to dictate what is and what is not art?
    THAT’S ME VERY POINT.
    Stop that. You cannot do that AND STILL BE TAKEN SERIOUSLY.
    You are, and I am, living in America, and not Malcolm’s dictatorship.

    And you persisted in writing more pure red herring stuff, suggesting it is something I or someone else insinuated or wrote; YOU, and ONLY YOU, wrote:
    “everything is ‘art’”
    “sue someone who looks like me for combing their hair in the same way I do or for wearing the same pants.”

    I did not, and no one else on this or any other thread I’ve read suggested any such crap EXCEPT YOU.

    And no one said anything here, there or anywhere about:
    “declining wealth as an additional reason that I need that right to sue.”
    THAT’S YOUR thought, and ONLY YOUR thought.

    Please, kick back, make a funny and cut the crap.

  10. Ms. Generis (assuming “Sue Generis” is not the proverbial boy named Sue) said: “I agree with poster above who asked what the point of such a law would be unless it benefits the public. Patents and copyrights supposedly promote the progress of the useful arts and sciences.”

    If copyright protection is available for a written expose on the life and times of Anna Nicole Smith and is therefore deemed to “promote the progress of the useful arts” then surely there is room for protecting fashion designs. Perhaps it’s just me (and JaOI), but I certainly find many fashion designs much more appealing to the senses than much of the garbage that is passed off as literary work these days. A woman wearing a bold summer dress in a colorful fabric? Very sensual and an art form worthy of protection. The latest ramblings from renowned “medical guru” Kevin Trudeau? not so much.

    As for the “public benefit” of protecting fashion designs and the like, seems to me that it’s no different than most other forms of IP protection. “Welfare for the fashion industry”? Talk about pure drivel. How in the world can providing additional protection for fashion designs amount to something akin to welfare for the fashion industry? Is it too much to ask that competitors come up their own designs? After all, if, as Malcolm says, none of the current designs are truly “new”, then it shouldn’t be too hard for a competitor to simply resurrect an old design in order to compete with the so-called “new” designs.

  11. “you want to tell me that someone is going to dictate what is and what is not art?”

    No.

    I want to tell you that the “intellectual property” that the fashion industry imagines it is “creating” is nothing of the sort.

    Your “argument” is so silly that even you should be able to take it one teeny baby step to its next logical conclusion: since everything is “art”, then I should be able to sue someone who looks like me for combing their hair in the same way I do or for wearing the same pants. After all, they are “copying” my “personal expression.”

    Sounds silly? Geez, I hope so.

    The only thing that could be sillier is if I cited my declining wealth as an additional reason that I need that right to sue.

  12. Dear Malcolm,

    I try to constrain myself till after 5pm before I kick it up a notch or two.

    But thank you for your thought.

    PS: Like I wrote earlier:
    Yoose [three] – - engineer-type – - guys above ought to get a life, smell the roses.
    You sound like you have no appreciation for art or beauty.
    I’d rather see engineers working in the fashion industry than, e.g., the industrial military complex, n’est-ce que pas?

  13. Dear Malcolm,

    So, now you want to tell me that someone is going to dictate what is and what is not art? You don’t believe fashion is an art form? You are entitled, this is America.

    But I am entitled to think something else about fashion, or would you deny me or others that privilege?

  14. Dear Malcolm,

    Your comment leaves me disappointed in you.

    First, which part is the “Pure drivel” to which you refer?

    Second, IP is business, for you, for me, for our follow Patently-O readers and bloggers. No part of that is welfare. The notion of “welfare for the fashion industry” is a red herring.

  15. Doesn’t fashion diversity have value in and of itself, like art?

    What does “value in and of itself” mean in this context?

    Answer: you don’t know. But it sounds great, doesn’t it?

    Kick it up a couple notches. Try harder. Read what you wrote before hitting the “post” button and check to make sure it’s coherent.

  16. Dear anon,

    You are certainly entitled to your opinion. This is America. But why would you tell some rich bitch she can’t have high fashion if she’s willing to pay for it?

    To each his own, that’s what the farmer said when he kissed the cow.

    Doesn’t fashion diversity have value in and of itself, like art? But that’s not my argument.

    If you allow picking and choosing IP, the big business lobbyists will win out for all the wrong reasons.

  17. “Without fashion, I guess fig leaves would do”

    Pure drivel, my friend. Pure drivel.

    You can and must do much much better than this if you expect anybone to be persuaded to support welfare for the fashion industry.

  18. “For designers who make a living on luxury products, it’s a real problem if anyone can have a $40 copy of your item before your own luxury-consumers can buy the original.”

    News flash: so-called “luxury consumers” are paying for the name so, no, it’s not a “real problem.”

    The real problem is a hyper-inflated market for brand name “designs,” none of which are “new” in the usual sense of that word.

  19. Dear Sue et al.,

    With all due respect, I don’t think yaw’ll get it. IP was never meant to be measured on a case by case basis, or even an industry by industry basis. Would you copyright sci-fi but not biographies?

    Besides, the Constitution’s patent clause specifies “useful Arts”:
    Section. 8. The Congress shall have Power … Clause 8: 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;

    Without fashion, I guess fig leaves would do, or we could walk around with our bare butts, or everyone could wear gunny sacks. Art is art, whether worn to adorn or hung in a hall.

    IP is business, business that encompasses “Science and useful Arts.” IP is not to be picked at for petty purposes by particular industries’ lobbyists. IP, strong IP, is integral with America’s premier global position.

    It’s like picking piece meal at our Constitution:
    Trim it a little here, ignore a clause there,
    let some lesser freedoms slide on a slippery slope,
    take We the Peoples’ homes for a Mall,
    renege by taking injunctions out of our old and new patents,
    TELL We the People:
    they can’t have rifles,
    can’t assembly without a license,
    can’t worship any goddamn way they want,
    can’t say openly our recent presidents really suck,
    (great line I heard in a movie: “he stopped voting so as not to encourage the bastards”), etc.,

    and before you know it,
    the great American way of life will be a relic of the past.

  20. First, as others have stated, the fundamental motivation behind Intellectual Property rights is to ensure that a public good that is easily copied will not be under produced. I have not heard any arguments that fashion is underproduced because designers are not able to capitalize on their works.

    Even IP protection would increase the number of fashion designs, I would question whether additional fashion designs provide any added social benefit. I am certainly not anti-fashion. I am the only heterosexual male that I know that reads InStyle magazine. While fashion itself is valuable in that it gives us a common language of expressing ourselves with our clothing, the actual number and content of designs is fairly arbitrary. If the toga were considered the dress of a dignified and professional man, everyone commenting on this blog would where one to the office.

    Furthermore, I can see this type of legislation being enforced very asymmetrically. It will be used by big name designers to prevent small retailers, and chain stores of lesser prestige from copying their styles. However, when that same big name designer goes into a trendy youth hot spot and spies some fashion innovation, will the trendy innovators be able to assert their rights against the big designers? Seems unlikely. The upshot will be to use law to enscone big name designers in their position as the arbiters of fashion.

  21. This Engineer has no problem with copyrights; I certainly appreciate the benefit of art and beauty. It’s “fashion” in particular that I view as having just about no merits. Really, what is the benefit of people paying ridiculous prices for articles of clothing they will wear for only a year (if that)?

    Investing money in making more durable, functional, comfortable, or cost-effective clothes? Great, go ahead and incentivise that.

    Investing money in writing a thought provoking novel, a catchy song, or creating a beautiful painting? Great, go ahead and incentivise that.

    Investing money in deciding what color / cut people have to pay more for this year or be looked down upon by their peers? I could take it or leave it; I’d rather not have my tax money spent drafting, passing, and enforcing legislation that reinforces superficiality, envy, and consumerism for consumerism’s sake.

  22. “it seems to me that the winner has always been the first to market with the great design and that that regime has worked just fine for a long time.”

    That’s one of the main issues here. A fashion designer creates a new look and showcases it at a fashion week. Then, someone makes a knockoff, quickly mass-produces it, and sells it for a fraction of the price before the designer even gets his or her original to the market. For designers who make a living on luxury products, it’s a real problem if anyone can have a $40 copy of your item before your own luxury-consumers can buy the original. Protecting this form of art doesn’t seem any more frivolous than providing IP protection for paparazzi photographs or the latest summer blockbuster.

  23. “Is there any indication that the fashion industry is suffering and needs additional incentives or protections?”

    Ralph Lauren had to wait another season to refinish the deck of his yacht.

  24. I agree with poster above who asked what the point of such a law would be unless it benefits the public. Patents and copyrights supposedly promote the progress of the useful arts and sciences. Other IP laws promote similar public interests. Is there any indication that the fashion industry is suffering and needs additional incentives or protections? Since high fashion changes so fast, it seems to me that the winner has always been the first to market with the great design and that that regime has worked just fine for a long time.

  25. Yoose three guys above ought to get a life, smell the roses.

    You sound like you have no appreciation for art or beauty.

    I’d rather see engineers working in the fashion industry than, e.g., the industrial military complex, n’est-ce que pas?

  26. “product designs receive little coverage from any of the major IP regimes of patent, copyright, & trademark”

    How does protecting fashion designs benefit the public?

    The answer: it doesn’t.

  27. > Anon said: Honestly, I don’t really care if
    > “fashion” gets any sort of IP protection. It
    > seems like much more of a cultural distraction
    > than something we need to worry about fostering
    > with artificial market constraints.

    Spoken like a true Engineer.

  28. Honestly, I don’t really care if “fashion” gets any sort of IP protection. It seems like much more of a cultural distraction than something we need to worry about fostering with artificial market constraints.

  29. It seems Senator Schumer had the sense to propose a three-year period of protection – sounds just about right for this industry. Now if he’d just pare back copyright protection for software to a similarly short term…

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