'A Design of its Own: How to Protect the Fashion Industry' by Gianna Cresto in
American Intellectual Property Law Association Quarterly Journal (Forthcoming)
discusses the gap in [US] intellectual property protections for the fashion industry.
First, it details why fashion is art of the type that typically qualifies for copyright protection, and not just a means of covering the body. Next, it discusses why this hybrid nature makes it unique and worthy of protection under current U.S. copyright law. Because designs are often chosen not just for their functional purpose, but for their artistic and expressive qualities, clothing is different from many other types of works protected by IP frameworks, including trademark and patent. The dual purpose and ability of fashion to be used as a form of expression should not keep if from the protection it deserves. The Supreme Court addressed the standard for copyright protection in the context of clothing design in Star Athletica v. Varsity Brands.
This Note suggests that this recent development marks an opportune time to push for new legislation that will expand the Star Athletica ruling. These increased protections for the fashion industry should be developed by drawing on other forms of IP protection for fashion in the United States, and protections in place in other countries. These hybrid works call for a hybrid solution. Though its solution, this Note fills the gap for fashion designs, particularly for designers that are just starting out or less conspicuous when it comes to branding.
