In response to the article, "The Most Fascinating Kind of Art: Fashion Design Protection as a Moral Right," Staci Riordan drafted the following:
Ms. Andrews' article, "The Most Fascinating Kind of Art: Fashion Design Protection as A Moral Right," propels the debate on whether the fashion industry needs a stronger intellectual property regime one step forward.
The fashion industry is indeed thriving: it is an over 350 billon dollar industry in the United States and the second largest industry in the world behind the food industry. Recent studies published in Professor Kal Raustiala's and Professor Christopher Sprigman's new book, The Knockoff Economy, demonstrate that sales and prices of high end designers goods are increasing.
Yet, legislation pending in Congress would provide fashion designers copyright protection from "economic ruin," perceived mainly caused by the reinterpretation of "their" designs by other designers and at lower price points (which is now permissible, and has been since this country was founded).
Copyright law grants authors a limited monopoly to economically incentivize the creation of goods or products. Why, then, does a thriving industry need economic protection that it never before had?
It doesn't. Applause to Ms. Andrews for calling proponents of the design legislation to the (red) carpet and unmasking their fatally-flawed (and repeatedly failed) economic argument.
Ms. Andrews correctly points out that those testifying and writing in support of the bill overwhelming state that fashion designers need intellectual property protection not because they are economically harmed, but because a fashion design is "an extension of a designer's creative soul and thus deserves some form of protection."
As those of you well-versed in intellectual property law know, this is not an economic argument, but a moral one. Moral rights laws, much more common in Europe, are designed to protect the reputation of the artist as well as the integrity of works of art.
Ms. Andrews' article asks whether fashion is art. From personal experience, I am certain all fashion designers would say yes. Taking a bolt of fabric and creating something pleasing to the eye and wearable is no small feat (as those of you who are Project Runway fans know). Also, such artistry, craftsmanship, and talent are not only found in those that design clothes, but also can be seen throughout the fashion industry - from make-up artists to stylists to runway show producers to window display designers.
Is fashion the type of "art," however, that should have moral rights protections like those given to fine art under the Visual Artists Rights Act ("VARA")? No.
Extending moral rights protection to fashion designs would create the same havoc on the fashion business as would the proposed legislation.[1]
However, I commend Ms. Andrews for revealing the "man behind the green curtain," and for challenging those proponents of increased intellectual property protection for fashion designs. Using inapplicable economic justifications for heightened IP is so last season.
View the original article and response.
Originally published in the Journal of Intellectual Property and Entertainment Law
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