In The News

Copyright Protection in Fashion

By Mary Hanbury
March 6, 2018
Business Insider

Christiane Campbell All fashion designers draw inspiration from the world around them and from their competitors, but fast-fashion stores like Zara and Forever 21 are frequently accused of crossing the line between being inspired by a designer and copying the item entirely. ...

How do they get away with it?

Fashion does not enjoy the same level of protection as other creative media such as art, literature, and film. This is because, by nature, fashion items serve a purpose, which means they are exempt from copyright laws.

"To be protectable by copyright, an item cannot be functional," Christiane Campbell, a partner at the Duane Morris law firm, told Business Insider. Because of this, "the argument has always been that fashion is not protectable," she said.

There are certain ways to protect a product's design, but the process to do so is time-consuming and expensive.

Retailers can use trade dress trademark laws to protect the visual characteristics of a product: the color, original pattern, or unique design element, for example, that are specific to that designer or product.

Campbell used the red-soled heels at Christian Louboutin as an example. The heels are recognized by the U.S. courts as a defining symbol of the brand and are now protected by trademark law, but this doesn't happen overnight.

"There is acquired distinctiveness, and it takes a lot of time and money," Campbell said. Plus, it's not recognized by all legal jurisdictions-in the EU, for example, the signature red soles are not protected.

Designers can also file for a design patent, but these are expensive and can take around two years to process.

Even if designers do decide to take the option to sue for copyright infringement, this lengthy process is undermined by the speed at which fast-fashion stores can have copycat items on shelves. This means that fast-fashion retailers are less intimidated to make products that are strikingly similar to what's seen on the runway.

"They tend to be pretty risk-tolerant," Campbell said, explaining that their products are flying off the shelves before a lawsuit even hits.

To read the full article, visit the Business Insider website.