Copyrights in Fashion Business - Research Paper Example

This paper seeks to provide a comprehensive overview of the rationale to having little legal protection in thefashion business. The fashion business is only partially legally protected by trademarks. Unlike other forms of creative work the fashion industry, it has very little legal protection in the form of trademarks in the UK. In the United States, the copyright Act denies protection to any article of utilitarian function. This implies any article, which is used in everyday purposes beyond artistic expression. Fashion designs fall in this category of artistic work with utilitarian function. This will demonstrate the need for any designer with a fashion accessory to prove to the authorities and the industrial courts that design qualifies for copyright protection. Such proof can only be through a demonstrable non-utilitarian purpose that the accessory serves. The fashion design industry it is common imitations of designs with different trademarks. The owners of the original designs can only file litigation if their trade marks if they find an imitation of their designs. Considering that copyright laws do not protect them, litigation on any of the imitated designs would fail unless the owner proves that indeed theirs had a unique non-utilitarian function to warrant copyright protection. It is hence paramount to explain through this research paper the reason for such unprotection and why there are few attempts to introduce law that can give copyright protection in the fashion industry. Introduction The fashion business is the most challenging for starters who come up with new designs. It operates in unfriendly legal environments with scant protection form intellectual property rights. A jaunt in the busy streets of London or New York reveals a culture of business ‘knocking off’ where people rush to imitate any new design as soon as it enters the fashion market. The most humiliating part is that vendors sell their imitations at a price almost half of the price of the original design. It is appalling that there are companies have built huge and legitimate enterprise selling the replicas of other original designs in malls and on the web. All such unfathomable outcomes of intellectual property abuses are not a justification for the introduction of copyright protection for fashion business. The fashion business is a great success in the world and especially the United States and the United Kingdom. Its uniqueness in the scope of offering products with utilitarian value to consumers needs little protection in form of trademarks in the extreme. Though the discussion it would be interesting to note that the fashion and design industry defies all the assumptions of the monopoly theory that establishes the doctrines of intellectual property rights. Thesis statement The fashion industry lacks the legal justification for copyright protection of new designs in the market. Discussion In mid 2011, the southern District of New York the held that color as a trade mark should only b limited to industrial products. It has been general rue that color can be registered as a trademark as long it is non-functional and has a secondary meaning. Color can only be a trade mark if the industrial goods with the color is used as the identifying feature of the specific product. In the case, Christian Louboutin versus Yves St. Laurent had similar allegation of trademark infringement. Christian Louboutin who sold shoes with a red sole alleged that Yves St Laurent had copied the color of its products. The southern district refused to grant a preliminary injunction that would have stopped Yves form continuing to sell shoes with a red sole. The court held that color could not be a trademark. After the denial of a preliminary injunction order, the court also granted St, Laurent’s motion for summary judgment on the invalidity of Louboutin’s trademark. The court held that, even if the public associated red soles of the shoes with Louboutin, color is a basic and essential element of fashion design that cannot be deemed as trademark of business even if it had a secondary meaning. This case was the best manifestation of the copying culture in the fashion and design industry with little protection through trademarks and copyrights. Later on in 2012, second circuit affirmed in part, reversed in part, and remanded. According to the second circuit decision, the district court violated Qualitex by denying that a single color can serve as a trademark for any fashion design. The second Circuit found that the red outsole on the Louboutin shoes had acquired the status of limited secondary meaning as an identifier of the Louboutin brand of shoes. The second Circuit, however, turned down the request to enjoin the use of red soles that match rather than contrasting with the shoe. The St. Laurent shoes were red with a matching red sole. Both sides of the litigation claimed that the decision was in their favor. Louboutin claimed that the decision uphold the use of color as trademark favored them. On the hand, St. Laurent claimed that the decision to allow them continue selling shoes with a red sole was in their favor (Shilling, 12-33). Concerning the case above, this argument will take the course of innovation as the central tool of prosperity in the contemporary society and market economies. Most people believe that, laws about copying that fall under intellectual property rights, such as copyrights laws, are the core to sustaining innovation and creativity. In the market economies of today, innovation is the center of competition. Competition on the other hand is the natural factor that ensures that the welfare of the consumer is naturally protected. It keeps the prices of goods and services low and the quality of products as high as it should possibly be. Most of the competition with the highest innovation indices involves copying (Raustiala & Sprigman, 7). For instance, the success of pink berry as a new product spawned the success of kiwiberry and yoghurt Land. This is a pure example of copying motivated by innovation. Opponents of copying in fashion design should consider revisiting the intentions of constitution writers for granting the congress the powers to create patents and copyrights only for ‘limited times’. This was not anything less than to ‘promote the progress of Science and useful Arts .As the constitution suggests, the copyist is supposed to be denied the freedom to copy for them to take part in the active process of innovation. Ideas are difficult to invent and therefore the innovators should be given the incentive to creatively come up with a new idea that can transform the society. However, this argument does not hold for all industries. The fashion industry and many other experience the ‘piracy paradox’ due to the dynamics of modern market economies. The debate on imitation and copying has for along time revolved around the most established industries in music production, pharmaceuticals and many more. Not even a single opponent t has ever taken the argument in the direction and perspective of industries where the argument does not hold. The fashion and design industry is one of them. The industry has remained vibrant even in the wake of a copying culture. Copying as conventional wisdom claims can impair innovation and creativity. This has not happened in the fashion industry. The industry has instead spurred in innovation and more pieces of creative works keep coming into the market. Social norms in the fashion market protect the interest of originators of particular designs and keeps innovation in a perpetual boom. One would be tempted to conclude that imitation is best for the fashion and design industry and therefore copyrights are unnecessary. Although this argument does not intend to pose as abolishing the rationale of intellectual property rights, the fashion industry is one place where creativity is versatile more than any other industry in the modern economies. Copying has unappreciated virtues that each individual should ponder. The rise of copying fashion and design is actually proving to be an apocalyptic issue in future. To illustrate this claim, it would be important to use a scenario which happened in the United States in 2007. Viewers of the ‘The late show with David Letterman’ witnessed Paris Hilton wearing dress with a flower inscription designed by Foley and Corinna. On the hand, Dana Foley, another one-time upcoming playwright, had begun making women’s clothing in the earlier years inspired by vintage. Foley met Anna Corinna, a vintage clothing designer and reseller, on the 6th avenue of New York. The two women decided to get into business as business partners. In 1999, they opened a store on the lower eastside and another in the West Hollywood. They emerged as the industry’s favorite with developed and wider market appeal according to the New York Times, with garments and accessories worth over $20 million. After the appearance of Paris Hilton on David Letterman’s show, Forever 21, a fast fashion retailer began selling a $40 dress similar to the original made by Foley and Corinna. The original dress was not expensive by the standard of the best fashion at the time, but it sold ten times more than the Forever 21’s knock off. Many of the Forever 21 buyers may have bought it without the awareness of Foley and Corinna’s dress. They may have bought it simply because they liked the new brand without likening it to any other brand. Others may have liked the original Foley and Corinna and decided to buy the cheaper one. These scenarios are common in the fashion industry. If the monopoly theory would apply in every business situation, the Foley and Corinna outcome would have been different. The theory suggests that the outright copying by Forever 21 should have precipitated an inevitable crisis in the fashion and design industry. In this case, innovation would effectively be driven out by such actions (Marschewski, 77). Investors would therefore suffer huge losses because of their products being pirated in the industry. The industry, according to the most accepted wisdom of the monopoly theory, would be on the nosedive. This cannot be ruled out in some industries such as the music, perhaps. How then was the outcome of the Foley and Corinna and Forever 21 absolutely the opposite of the expectations of the monopoly theory? The apparel industry has thrived over the last five decades in the face of massive copying. It has also been creative in a progressive trend with a greater diversity of designs available to consumers at all times. If the pressure on the fashion industry is for designers to come up with new designs, it is happening today. There are new labels in the market each day. It is cheaper to access clothing today than ever before. Designs are coming out of both the big players in the industry and small films as well. The rich and the poor are both accessible to designer’s fashion while the small and large industry players can access the market share. This balancing effect is the best justification that fashion and design does not copyright regulation. At the same time the trend has not inhibited innovation because the new designs that keep pouring in the market always have something new over the original. Even though, the apparel industry hurts original designers in some cases, the entire industry benefits. Fashion has become the obsession it is today due to the apparel industry. If the monopoly theory predicts doom of the industry, this should not be the case. The rise of the apparel industry in fashion trends led into the culmination of television program hits such as ‘Project runway’, ‘What not wear’ and ‘America’s next top model’. The programs create platform to illuminate the process of fashion design. They have millions of viewers around the world. Success films such as ‘unzipped’,’ the devil wears Prada’ and ‘The September Issue’ managed to make such headlines due to the success of both the apparel and the so called legitimate fashion market. This is to indicate that the fashion industry has experienced phenomenal growth and copying has precipitated the growth rather than destroyed the market. Today, the fashion industry is a blend of products of the mighty and the low: the cheap and the ostentatiously expensive. Firms such as H&M that sell very cheap clothes are seen sharing the market segment with others with very high priced brands such as Tom Ford. In other instances, hybrids of the two extremes emerge to target certain consumers. Consumers have the opportunity to hunt and gather for the latest brands with the most affordable prices. On economic point of view, this is the best market for the consumer because they are comfortable at each income level with good quality as a guarantee. American laws on copyright do not arise from a deliberate decision. It is rather a characteristic of the unique approach to the copyright laws. The law allows the copying of useful items (Mackaay, 76). Useful items are those that are usable in the everyday life of people. In this regard, apparel falls in the category o useful items. Their creativity is closely connected to practicality. Not all work of art falls in the category of functional goods (Chaudhry & Zimmerman, 114). A dress which may be a product of creative work is a functional good and therefore allowed for copying by the law. On the other hand, painting should not be copied because it is not a functional product. The copyright law focuses on art forms that lack function, such as music, or have the minimal functional attributes. Some goods such as jewellery may be functional but they lack copyright protection because they ornamental rather than article goods. Two-dimensional sketches such as paintings are protected. However, three-dimensional products of the sketch are not protected. The same applies to paintings that appear on clothing. A printed cloth is protected, just as a painting would be. However, the configuration and shape of the cloth that carries the print can be copied without any litigation consequences. The rules against copying are partially applicable in the fashion industry. If the expressive component of a cloth can be separated from its useful function, the principles of copyright law are applicable. For example if a jewellery is affixed on a dress, the jewel is protected because it ca be separated from the dress. Conceptually, the jewel does not contribute to the utility of the dress. The dress can still keep a person warm without the jewel or it can still cover the user without the jewel. With the merging trends in fashion and design, very few fashion designs are separable in this manner. The expressive elements in this case are not affixed on the cloth as in the case above but are installed on the garment in manner that contributes to utility. The utility in this case is the intrinsic utility of covering and comfort. Most of the products in the fashion industry can be copied at will. The law allows it. With the huge success of the fashion industry, copying and imitations, copyright restrictions should hence be inapplicable in the fashion and design industry across the world. Conclusion The modern market economy has varied industry players with unique and different market characteristics. To apply the copyright laws its champions should examine the trends in the particular market. It would be paramount for the entire economy to focus on consumer welfare and the effect of copying on innovation in the particular industry. In the fashion industry, the effects of copying and imitations are more of a success story than a failure. The monopoly theory is not an ideal doctrine that must be used in every market segment where creativity is core. The theory completely fails to confirm its practicality in the contemporary economy. This research is a revelation for other industries. Perhaps, they could grow better than they are if they freed themselves from the traditional copyright laws. Every society is dynamic and the more industry player takes advantage of such dynamics the more the consumer gets the best out of production. In the actual sense, as it has been found in the discussion, copying diversifies the process of innovation and takes quality to an all-inclusive direction where the poor can access the best just like the rich. The practice is also constitutional with the law providing the best classifications of products to receive copyright protection and those that do not. Both the original and apparel producers share the market without bringing down the industry. If investment in the fashion industry is growing and sustainable, then indeed, copying is on the right side of the law. The fashion industry lacks the legal justification for copyright protection of new designs in the market. Works cited Chaudhry, Peggy, and Alan Zimmerman. Protecting Your Intellectual Property Rights: Understanding the Role of Management, Governments, Consumers and Pirates. New York, NY: Springer, 2013. Internet resource. Mackaay, Ejan. Law and Economics for Civil Law Systems. Cheltenham: Edward Elgar Pub, 2013. Internet resource. Marschewski, Sina. Intellectual Property Protection in the Fashion Industry: The Piracy Paradox from a European Point of View. Mu?nchen: AVM, 2011. Print. Raustiala, Kal, and Christopher Sprigman. The Knockoff Economy: How Imitation Sparks Innovation. New York: Oxford University Press, 2012. Print. Shilling, Dana. Lawyer's Desk Book, 2013. S.l.: Kluwer Law International, 2012. Print. Read More