FASHION DESIGN AND COPYRIGHT

A copyright is a "bundle of rights" which provides the owner with exclusive rights to exploit their artwork, i.e. the right to display or perform the work, the right to reproduce the work, etc., or to authorize others to do so. These rights are protected in the United States by The Copyright Act of 1976, and internationally by the Berne Convention. Conversely, there is no protection under The Copyright Act for designs of utilitarian items such as cars or furniture. If these items incorporate elements with artistic merit, those elements would be entitled to copyright protection as seperate works of art.

Therefore, copyright protection is available for printed designs on fabric, as well as for sketches of a garment created by a designer, but the garment, itself, is not protected. Such protection is of limited use to a designer who can protect his/her patterns, but the garment can be freely copied by anyone. In fact, the copying of designs is customary in the fashion industry. The larger design houses create new designs, which they exhibit and sell for high prices. Over time, other manufacturers copy those designs, creating less-expensive "knock-offs," while the major designers create newer designs and fashions. Supposedly, the "knock-offs" sell at a much lower price than the originals and sell to a different market, and therefore have little economic effect upon the original designers.

It would seem unfair that fashion design is not protected in the same way copyright law protects other forms of artistic expression. Most artists have the right to sell licenses to others for the use of their artwork in various markets. The fashion designer has no such right.

The European Economic Community is working towards a new form of protection called "Community Design," which shall combine aspects of copyright and design patent protections. Designs from the fashion, textile, watch, shoe, furniture and automobile industry shall be entitled to protection. A designer may obtain short-term protection up to three years without registration, or long-term protection up to twenty years if the design is registered with an EEC agency. Similar legislation has been introduced in the United States, but has never been passed. If American fasion designers wish to have similar protection to their European counterparts, they will have to support legislation which mandates it. Until that time, designers are generally free to create new fashions or copy the designs of others.

First Published Version, Copyright 1991 David M. Spatt

COPYRIGHT PROTECTION HAS BEEN AFFORDED TO ARCHITECTURAL DESIGNS

by a December 1, 1990 law. Before the law, architect's plans, drawings and models were protected from unauthorized reproduction. After the new law, H.R. 5316, it is now an act of infringement to construct a " copycat" structure or a structure from the copyright owner's drawings or models without the permission of the copyright owner, even if such plans were obtained without wrongdoing.

Of course, the proof of the existence of an infringement is always a complex matter-especially where the copying is of a commonplace structure and the copyright owner would have to prove it was his plan or design that was copied.

First Published Version, copyright 1993 David M. Spatt