Ladies and gentlemen, the Innovative Design Protection and Privacy Prevention Act

Early this summer, I wrote a post about how fashion designers are bereft of copyright protection. Turns out, Chuck Schumer and the Council of Fashion Designers of America are trying to do something about it. In August, Senator Schumer introduced proposed legislation into Congress that, if passed, would extend limited copyright protection to fashion designs. Specifically, the new legislation would protect any fashion design from being copied for a period of three years from the date the fashion design is made public. You can read the bill here.

Clearly, a lot of designers are in support of the proposed legislation. On the other hand, Johanna Blakley, our fashion theorist in a bullet-proof vest from early this summer, points out that "right now, designers pore over vintage magazines and patterns and visit museum archives in order to find inspiration for the next season’s look, cherry picking design elements that feel fresh and in line with the current zeitgeist. It’s a refreshingly open process unhindered by legal consultations. Those archives could become battlefields where litigants try to find evidence to support their assertion that a design is or is not unique. The geeky librarian in me is worried that some powerful people may attempt to limit access to particularly rich collections of design history and some unscrupulous types may destroy or hide rare materials that prove that their new design isn’t as unique as they claim."

What's so great about copyright if fashion designers do well without it?

One of the traditional justifications for copyright law is that without it, creative people will be discouraged from creating.  The fashion industry is a counterexample, because it has flourished in the absence of copyright protection for clothing (clothes are considered too "utilitarian" to qualify for copyright protection, in the same way that a recipe or a park bench can't be copyrighted, no matter how fanciful).  Of course, creativity has never needed copyright law, which was only recently invented anyway.  Johanna Blakley, in her entertaining presentation on copyright and the fashion industry, displays a chart that shows that revenues in "low IP" industries such as clothing and food dwarf those of "high IP" industries such as music, books and films.  But the clothing and food industries also have going for them the fact that without clothing and food, we'd all be naked and starving: their survival in the absence of copyright protection is no surprise.  Revenues aside, Ms. Blakley has some interesting observations about how the lack of copyright protection in the fashion industry may contribute to increased innovation.

But the big unanswered question in this presentation on fashion and the law is why Ms. Blakley is wearing a jacket that looks like it was inspired by a bullet-proof vest.