More to Lose for the Entrant Designer
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By Emehakon Ukpong
Introduction
The fashion industry is one of the largest and most lucrative industries within the global market. The United States (US) apparel industry, is also one of the largest within that market valuing at about 358 billion US dollars. With increasingcommercial accomplishments, the fashion industry has proved itself as an industry to be taken seriously within the economic stratosphere. Furthermore, the lucrativeness of apparel sales within the US, and the coverage of fashion industry data within our most fundamental news resources, is a testament to the social significance and economic recognition accorded to the industry.Yet, it would appear that the law is yet to accord the industry any acknowledgement. Despite the economic and social impact of the fashion industry, its core product, fashion design, is yet to receive substantial intellectual property (IP) protection. Throughout this dissertation, the fashion design to which is referred, is the 3-dimensional outcome of a design in the form of clothing, as opposed to a rendering of clothing yet to be realised.
Currently, there are no intellectual property protections afforded to fashion design as a whole in the US. Rather, these designs receive partial protection from existing institutions of copyright, trademark and patent law. Several proposals have been put forward over the years to provide more protections for fashion design but to little avail. The resulting lack of protection, has led to design piracy as a typical occurrence within the fashion industry. Much of the growth of the industry can be attributed to fast fashion firms; a relatively recent development which has been said to be growing faster than the entire apparel industry itself. These firms thrive off the fashion industry’s low intellectual property regime as they are mainly concerned with interpreting the designs of other fashion designers. A key concern about this development is that the business practices of fast fashion firms negatively affect certain sectors of the fashion industry. Specifically, the common practice of fast fashion copyists in closely appropriating designs, is particularly damaging to the growth of entrant designers. Despite the fashion industry’s economic success, the prevalence of design piracy creates difficulty for entrant independent designers to break through and establish themselves within the market.
This dissertation contends that the current intellectual property regime is inadequate in the protection it provides to entrant designers. It argues for sui generis copyright protection for apparel design and proposes statutory changes which will consider the needs of entrant designers alongside the rest of the fashion industry. Chapter I will undergo an analysis of the law underpinning the institutions of copyright, trademark and patent in order to highlight the limited protection they provide to fashion design. It will also be brought to light, how this limited protection is particularly burdensome to entrant designers. Chapter II will then explore how the entrant designer is particularly affected by design piracy in the current climate of the fashion industry. Finally, Chapter III will attempt to recommend a mutually beneficial model of copyright protection for the fashion industry. It will do this through analysing and proposing reform to recently proposed fashion design protection bills, the Innovative Design Protection and Piracy Prevention Act (ID3PA) and Innovative Design Protection Act (IDPA). It will also briefly examine licencing schemes as a supporting business model to further promote cooperative practices amongst fashion industry participants.
