“Fashion is made to become unfashionable.” –Coco Chanel.
Ms. Chanel may have been an accidental intellectual property (IP) guru, decades ahead of her time. She unwittingly referred to an aspect of fashion that modern IP scholars claim is the crux of why they oppose more robust IP protection. Namely, that fashion is, by its nature, based on inspiration and derivation, and strict IP laws would stifle innovation.
There are only so many ways to cover the body. Determining what is original is subjective, so, naturally, creations are borrowed or referenced from someone else’s work. The problem is, where does inspiration become imitation? Complicating the matter further, while focus revolves around gaining and maintaining IP protection, in certain circles, IP specialists believe protection should be granted only in exceptional circumstances to reward innovation worthy of a limited monopoly in a free market.
Not surprisingly, this debate is particularly intense in the fashion industry, which pushes the boundaries between derivation and copying. By virtue of the subject matter, the industry will never establish a bright-line test.
Countries that provide more robust or weaker IP protection for fashion coincidentally (or is it?) align with those countries’ fashion history.
For example, original “creator countries” offer more protection to fashion, and those countries whose fashion offerings were initially based on copies of original styles tend to adopt less stringent protections — ostensibly to allow for liberal derivation, also known as “inspiration.”
It is no secret that Europe is the bedrock of fashion creativity from which all other fashion capitals grew. English and European aristocracy held the most wealth and luxury globally for centuries, and French fashion set the tone.
That may be why fashion design protection is better established in Europe and the United Kingdom than in the United States. In fact, fashion design is primarily outside the purview of IP protection in America.
Many fashion designers have argued for an amendment to the United States Copyright Act to protect original fashion designs from copyists. The battle wages among those who, like Coco, believe that fashion is better off in a low IP environment and those who argue that fashion designs are no less creative than other protected industries and deserve similar protection.
By virtue of the subject matter, the industry will never establish a bright-line test.
