Making American Fashion Great Again – Does the Law Need Reform? An Enquiry Into the State of Intellectual Property Rights in American Fashion Law
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Aisha Rutherford is 21 years-old and is from the North-East of England.
In this essay, the topic of copyright law in fashion was chosen for several reasons. Firstly, the prevalence of copying in the fast-fashion industry makes intellectual property a topical issue. US law reform was chosen as the most pressing copyright issue as there is no sui generis law, with legislators stretching legislation intended to protect boat hull designs to fashion. As the research progressed, it became evident that US copyright protection is sparse, leaving mostly unestablished designers vulnerable to copyists. This is in stark contrast to EU, UK and French legislation, which prompted this essay to argue for a US reform proposal similar to its European counterparts.
In sum, the failure of previous US reform proposals was due to the inability to draw a reasonable line of copyright infringement (in the eyes of Congress). It is likely, due to the speed at which reforms were previously introduced that this matter will appear before Congress once more. Indeed, the pressure from European legislation and the possibility that American designers could leave the country in favour of greater design rights elsewhere could cause Congress to reconsider their outdated position.
- Aisha Rutherford, Author
Introduction
This dissertation aims to respond to the question of whether intellectual property (IP) rights in American fashion law need reform. Academics have criticised the law as being inadequate, leaving fashion designers, especially unestablished ones, vulnerable to design piracy. This dissertation will focus on copyright law as it currently offers the weakest strand of protection in comparison with patent and trademark law. It is submitted that reform is necessary. This dissertation will prove that the current legislation lacks legal certainty, is ineffective and is unsuited to the industry given the rise of fast-fashion. These issues will be explored in the following chapters.
Chapter 1 will demonstrate that the law is outdated as fast-fashion has aided copiers greatly and current legislation is in dire need of reform. Chapter 2 will consider the credibility of academic theories, submitting that the ‘game theory’ and ‘distorting innovation theory’ are the most compelling reasons for reform. Chapter 3 will discuss why previous reforms failed and suggest how reformists can learn from this. Chapter 4 will compare America to France, the UK and the EU so as to make recommendations to legislation. Finally, this dissertation will submit proposals for reform based on academic theories and other jurisdictional models. Inter alia, reform will include: a sui generis law, the removal of the ‘separability’ test and a new line of infringement (to allow ‘inspired by’ fashion and prohibit counterfeit pieces). These reforms would help make the law more certain, effective and easier to enforce.
