A Fashion Fiasco

Photo By: ChristopherMacsurak

Hollywood actresses spend thousands of dollars on couture dresses for the Academy Awards. The designers who craft these exquisite gowns spend hours of time and bundles of money to adorn such fashion-forward actresses. Yet in minutes of stepping on the red carpet, individuals are sketching these designs with plans to recreate a cheaper version of the couture for the mass-market. With the rapid use of technology, designs from runway shows in Paris and Milan are being recreated overnight and are shown in stores, such as Forever 21, in the United States within weeks. The quick snap of a camera and the instant upload to a computer can turn a couture design into a cheap knock-off.

Currently, trade dress law and policy does not cover the design of a dress but rather covers only the look and feel of the article. In the basis for a Supreme Court case, Samara designed and manufactured children’s clothing. Wal-Mart sold knock-offs or copies of these designs and generated approximately $1.5 million in gross profits. In Wal-Mart v. Samara, 529 U.S. 205 (2000), the Supreme Court held that clothing is product design and therefore secondary meaning is needed.

Similarly, copyright law doesn’t cover the overall design of a dress but it does cover a pattern. Specifically, copyright law covers the lace pattern of a wedding dress but does not extend to the wedding dress as a whole. Over the past four years, Representatives have introduced design piracy legislation into Congress only to have it die in committee hearings before reaching a vote.

Along with maintaining creativity, designers must endure the push and pull nature between copyright and trade dress law while searching for available protections for their designs. With the scarce options of intellectual property remedies for designers, design pirates are monetarily capitalizing on a designer’s creation and are usurping their creative marrow.

The question left for designers is whether the fate of their protective remedies is left with Congress or with the courts. Moreover, if either of those routes fail, then will designers be left with parsing the intellectual property principles of copyright and trade dress to protect specific aspects of their design?