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By Nathan Drake
The wildly popular and quickly emerging fashion giant, Forever 21, has endured numerous obstacles since its inception into the fashion industry 27 years ago. Recently however, Forever 21 has encountered a new type of hurdle; copyright infringement. In the January 24th edition of Bloomberg Businessweek, Susan Berfield explains, “Starting in about 2004…labels ranging from Diane von Furstenberg to Anna Sui to Anthropologie, about 50 in all, separately sued Forever 21 for copying their clothes.” According to Susan Scafidi, a copyright professor at Fordham University Law School and director of the Fashion Law Institute, “Of the various fast fashion chains, Forever 21 is the one who treats liability as a cost of doing business…Illegal copying has been incorporated into their business model.” In response to this increasing litigation and skewed mentality in the fashion industry, numerous senators, including Senator Schumer and Senator Clinton, introduced a bill in 2006 amending Title 17 of the Copyright Act of 1976 of the United States Code to include copyright protection for “fashion design.” If it passes, this would represent the first addition of a new protected class of copyrighted works since Congress passed the Architectural Works Copyright Protection Act in 1989.
Consequently, the question that looms in the minds of those opposing copyright protection for fashion design is simple: How does one successfully and fairly protect something as functional and practical as clothing? While certain designers and fashion lines will have their own character and price tag, allowing certain individuals to own sleeve designs or collar configurations would prove absurd and oppressive. Just as architecture laws do not provide copyright protection for “functional elements,” such as doors, windows, walls or ceilings, fashion design is limited in what it can deem copyrightable, i.e., original, due to the utilitarian use of clothing.
Support for copyright protection in the fashion industry has gained a backing from several prominent designers and New York’s Council of Fashion Designers of America, according to Louis S. Ederer and Maxwell Preston of Arnold and Porter LLP. The main opponent of the bill has been the American Apparel and Footwear Association. As Preston and Ederer explain, the AAFA has opposed the bill for several reasons, including, but not limited to ambiguous language in prosecuting copyright infringement and the perceived lack of resources to accommodate the influx of applications the Copyright Office would likely encounter. In response to these complaints, Senator Schumer and his colleagues have revised and submitted a new bill to the Senate as of August 5, 2010 (S. 3728).
In the eyes of the law, clothing serves a “utilitarian” purpose in covering a person’s body, so attempting to separate the fashion design from the clothing becomes a very difficult task. Essentially, the copyright law wants to prevent functional styles, such as the collared shirt or the “v-neck,” to remain unprotected due to the utilitarian and practical purpose it provides. To assure this, the current requirements of the Copyright Act would still apply, i.e.¸ that the fashion design would need possess a “modicum” of originality in order to be eligible for copyright protection. The current draft of the S. 3728 specifically states that the fashion design must “provide a unique, distinguishable non-trivial and non-utilitarian variation over prior designs for similar types of articles” (Section 2(a)(2)(B)(ii)).
Furthermore, while there is no perfect answer for an issue as complex as copyright protection for fashion design, working to promote a healthy industry by awarding creativity is an important principle. The revised bill, currently called the “Innovative Design Protection and Piracy Prevention Act” was introduced on August 5, 2010 and remains in the Senate to be discussed and voted on.
The author, Nathan Drake is a senior at Belmont University from Northville, Michigan who graduates in May with a degree in Music Business from the Mike Curb School of Music Business. Nathan currently clerks for Mr. Barry Neil Shrum at Shrum & Associates in Nashville, Tennessee. He plans on pursuing a law degree after graduation.
Berfield, Susan. “Forever 21’s Fast (and Loose) Fashion Empire.” Bloomberg BusinessWeek. 20 Jan. 2011. Web. 14 Feb. 2011. <http://www.businessweek.com/magazine/content/11_05/b4213090559511_page_2.htm>.
“Copyright Law of the United States.” U.S. Copyright Office. Oct. 2009. Web. 7 Feb. 2011. <Copyright.gov>.
Ederer, Louis S., and Maxwell Preston. “The Innovative Design Protection and Piracy Prevention Act – Fashion Industry Friend or Faux?” Business Solutions & Software for Legal, Education and Government | LexisNexis. 25 Aug. 2010. Web. 07 Feb. 2011. <http://www.lexisnexis.com/Community/copyright-trademarklaw/blogs/fashionindustrylaw/archive/2010/08/25/the-innovative-design-protection-and-piracy-prevention-act-fashion-industry-friend-or-faux.aspx>.
Schumer, Charles. “Bill Text – 111th Congress (2009-2010).” THOMAS (Library of Congress). 5 Aug. 2010. Web. 07 Feb. 2011. http://thomas.loc.gov/cgi-bin/query/D?c111:1:./temp/~c11198mPaA::.