Wednesday, September 19th 2018

Should Intellectual Property Include Fashion Design?

You probably don’t think twice about buying a cheap (but cute!) dress from Forever 21, H&M or even a department store like Macy’s. It’s just an added bonus that it looks just like the Oscar de la Renta that Lea Michele wore to the Emmy Awards a few weeks ago, right?

The Council of Fashion Designers of America (CFDA) doesn’t agree. CFDA president Diane von Furstenberg is spearheading the movement against fashion counterfeits. This doesn’t just include obvious copies such as fake Louis Vuitton handbags, but pieces “inspired” by recent runway shows and celebrity red carpet appearances. With New York Fashion Week currently underway, designers are worried because a look can be copied and in production within a day of the show. In 2007, a group of Senators introduced the Design Piracy Protection Act, backed by the CFDA, which would protect designs from infringement for three years.

Designers aren’t the only ones losing money—American companies lose an estimated $20 billion annually due to counterfeit goods in addition to hundreds of thousands of jobs. Counterfeit and imitation manufacturers usually take advantage of “the availability of cheap labor in emerging economies” to produce clothing quickly and inexpensively.

This yet-to-be-passed bill begs the question of whether fashion designs fall under intellectual property rights, which generally protects artistic, musical and literary works. Right now, copyright law recognizes fashion designs as “useful articles,” which aren’t protected like a book or photograph would be. Logos and brand names are, of course, trademarked, which is why fake sunglasses sporting the Chanel double C’s or a counterfeit handbag with a Prada label are illegal. Patent law doesn’t protect designers either—it requires the invention to be new, which most clothing items aren’t.

Not everybody thinks legislation is a good idea. Most of us can’t afford clothes that cost thousands of dollars; why pay for the real thing when you can get something similar for under $100? Companies that produce high-fashion rip-offs claim they tweak the original designs or simply use them for inspiration. After all, that isn’t illegal. Despite this, Burberry, Anna Sui and Tory Burch have all recently filed lawsuits against manufacturers who have allegedly stolen their intellectual property.

So what is without-a-doubt legal? Here’s the good news: those designer collaborations with stores like Target, H&M, Macy’s and Kohl’s are officially licensed. Lanvin is coming out with a line for H&M this fall, arguably the most haute couture fashion house the Swedish chain has snagged so far.

Should fashion designs be protected as intellectual property? Would legislation really be effective at curbing copies? Let us know your thoughts.

Posted by Nancy on September 14, 2010 at 4:26pm.

5 Responses to “Should Intellectual Property Include Fashion Design?”

  1. avatar Judy Clark says:

    Wonderful article.

  2. avatar Donna Clifton says:

    Nancy — thanks for a very good, interesting and thought provocative article.

    I think the fashion industry is just one of the many industries who fight this problem and most of the time do not come out the winners…for example, will list just one of the many industries who constantly struggle with this problem.

    Pharmaceutical products are constantly being “sold out”, so as to speak, to generic companies. Yes, they are allowed to keep some drugs for a specified period of time but even then they will not necessarily have made up the amount of money that was required to put into research and development of that particular drug. The generic companies have no R&D – they are simply made up of lawyers. The insurance industry is getting so they will not cover the original drug if a generic is available. This is undermining the entire pharmaceutical profession just like the “knockoffs” of fashion are undermining the companies who have spent hours/money to produce the true original fashion design.

    Legislation on all of this — we are legislated up to our eyebrows now. Do we really want more? I must agree though, without it, the stealing of intellectual properties will continue as long as there are consumers who care nothing about such things and are the happiest when they find “a good deal!”

    Keep up the good work and will look forward to your next article.

  3. avatar Judy says:

    Thanks for writing the article. It is very informative.

  4. avatar Omi says:

    This is a wonderful article.

  5. avatar Veronica says:


    Here’s a follow up today on the WSJ that adds to what you were saying, “Project Copyright! Bill Giving IP Protection to Fashion Moves Forward”

    Nice article.


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