There are many things that are subject to copyright protection — books, articles, film, pictures, music — but fashion design was not high on the founders’ list of concerns when they fashioned the first copyright laws. Nor has the legislature been impressed by past attempts at extending the scope (as opposed to the ever-growing length) of copyright law to include novel categories. The argument to include fashion design is the argument one would expect: it is an artistic creation in the same way that sculpture is an artistic creation, or modern art. And if you can prohibit the wholesale copying and sale of copies of those goods, why is there no protection for the fashion artist? Why aren’t Chanel’s unique hat designs deserving of the same protection as Picasso’s scribbles on the back of matchbooks?
Pursuing this theory, fashion house Balenciaga recently filed suit against Steve Madden for stealing its shoe designs, which should come as no great shock given that Madden was also recently sued by Alexander McQueen for copying his Faithful boot. Although the lawsuits would seem to be premature given the status of copyright law, the fashion industry is getting a helping hand from New York Senator Charles Schumer, who has been trying to get a fashion copyright bill passed since 2007. Language has held up previous versions of the bill, but this around time a Harvard law professor — Jeannie Suk — is helping parse the specifications of just how similar an article of clothing has to be to another before being considered a knockoff.
I am a commercial litigator and intellectual property lawyer in Orange County. Although my practice encompasses a wide variety of business disputes, I have a particular fondness for, and am prone to wax philosophical on, the subjects of copyright and trademark infringement in music, literature, art, and film.