Fashion designers and costumiers face a difficult flaw in their industry. While creative works have been protected by legislation for hundreds of years the vast majority of clothing has never been covered. This issue has grown largely in the last 20 years as the ‘fast fashion’ of most high streets is simply copied from designers at Fashion Weeks and manufactured to vast volumes before the originals enter the market.
Top fashion houses are able to copy designs straight off the runway or even the shop floor. The reason is that clothes are deemed “functional items” rather than creative masterpieces. That makes sense given no one should own the intellectual rights to the common shirt or shoe, but what about beautifully crafted couture pieces?
The vintage fashion market is no exception to this. Have you seen all those “No photos” signs in vintage shops and market stalls? Those retailers have a wealth of rare or even unique items that can be reinterpreted and sold in their millions. This is the reason so many fashion successes now focus on big labels rather than intricate designs because that logo is covered by trademark protection. Notice how high street shops churn out so many unusual designs in a matter of weeks? Their buyers find interesting garments to copy.
Functional or Decorative?
There are some small means for designers to protect their work. Creative elements like a printed pattern or certain colour combinations are covered by copyright. Essentially its is purely decorative elements of a design that are notrelated to its utilitarian function that can be copyrighted. The independent legal advice site newmediarights.org gives the example case of Kieselstein-Cord v. Accessories by Pearl, Inc when the court needed to determine whether a designer belt buckle could receive copyright protection. Does a designer belt buckle have a visual function that is not part of its function of holding a belt together? The court found that generally “sculptured designs cast in precious metals—decorative in nature and used as jewelry,” were separate enough to be protected by copyright even though belts were not generally protected. The buckle could be removed and sold as a separate piece and is therefore a decorative item and not utilitarian.
Equally the U.S. Copyright Act is that a fashion design may be protectable “only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” Sadly for breathtaking couture designs these, by definition, complement the wearer’s movement and so are unlikely to be distinguished from its function as a clothing piece.
Some critics argue that, besides the importance to creative freedom in being able to copy and alter existing designs, the drip-down effect of fashion means that imitations increase the potential of the original designs. If a fashion designer ends up copied by cheap high street shops then they could, in theory, benefit from more savvy customers who want the high-end version.