© in Clothes

Every so often, people get stroppy that fashion designers don't have intellectual property protection for their creations in the US. A recent article advocates creating a sui generis "fashion design right" that would protect clothing designers from infringement by "closely and substantially similar" designs. By creating a sui generis right, it gets around the problem of copyright law not protecting "useful articles." Boat hulls and semiconductor chips are also unprotected by copyright law but instead have separate protection similar to copyright.

But I think that this is a bad idea for clothes for a whole bunch of reasons. First of all, I'm not sure how we're going to say that clothes that are "substantially similar" don't infringe, but clothes that are "closely and substantially similar" do. What sort of rules or standards can we apply here? The difference between "inspired by" and "knockoff" isn't always going to be nearly as clear as the article suggests, possibly to the point where it's impossible to tell what infringes, and the sui generis right just turns into copyright. Which brings me to my second point: there's a reason for the exclusion of useful articles from copyright protection. There's only so much an article of clothing can do, and if we start overprotecting things where form is tied up too closely with function, everything suddenly starts to become monopolized. Third, there is no discussion of how long the fashion design right might last. Both semiconductor chips and boat hulls are protected for a maximum of ten years. Does designer clothing really need to be protected for any longer than, say, six months? After a few months, the dilution problem presented by knockoffs goes way down because the designer clothes are now out of fashion, anyway. And once you get to such short periods of time, things become less administerable. (Aside: There are proposals I've read to give reporters, like, 24 hours of IP protection over facts they report on to prevent other reporters and bloggers from piggybacking on them. Interesting, but problematic -- but that's another story.)

Fourth, the fashion industry in the US isn't exactly withering away. Jason Wu is now, like, really famous. Is there a real need to give exclusive rights to an industry that is doing fine without them? Fifth, originality is going to be a problem because even designer clothes are closely derived from what came before. Will the fashion design right have a softer originality standard than copyright? Sixth, trademark law already gives the fashion industry some protection (which is addressed in the penultimate paragraph of the article). While the protection offered by TM law is obviously incomplete, that doesn't mean that we automatically need to give a greater monopoly.

And, seventh, I <3 F21.