Global warming may be a fact of life, but fashion still changes with the seasons. Consumers of high-fashion clothing continuously demand new looks from designers like Armani, Chanel, and Christian Dior. A buyer who has spent thousands on a single item of clothing would not tolerate the embarrassment of showing up at a fashion party in the same dress as the hostess. To prevent such faux pas from ruining anyone's night, most couture designs are made in limited quantities and at exorbitant prices. Unfortunately, not even those precautions are guaranteed to avoid the problem. New York designer Oscar De La Renta crafted an $8,500 crimson gown and several socialites still managed to wear it to the same event in 2006.

For those of us who aspire to keep up with the latest trends, but are forced to hang our fashion sense from the clearance rack, there is a ray of hope: retail operations like Forever21 and PinkIce work in partnership with knockoff creators like Seema Anand to imitate each new design as soon as it crosses the runways of Paris or Milan. The imitators are so quick that sometimes the copied designs hit store shelves before the originals!

The dispute between designers and copycats has inspired scholarly papers and textbook chapters. A series of blogs have sprung up to chronicle the escalating friction between high-fashion designers and the retailers beating them at their own game. Widespread copying has forced some designers to turn to the courts to prevent the imitations from stealing their business. Anna Sui, for example, is suing Forever21 in New York federal court for blatant and intentional copying of numerous pieces of women's apparel. She's asking the court for lost profits and an order preventing Forever21 from imitating her work in the future. Can Ms. Sui rely on copyright law to stop Forever21?

Copying: sincerest flattery, or against the law?

In the United States, copyright law protects many categories of creative endeavors, like painting, sculpture, written works, photos, video, music, and architecture. However, current U.S. copyright law does not protect clothing. This legal loophole is big enough that in 2006, Forever21 was able to drive a billion dollars in sales right through it.

The legal debate boils down to two main points. First, apart from a design printed on the fabric, does clothing possess any artistic or aesthetic qualities that can be entirely separated from its functionality as a useful item? Second, would explicitly extending copyright to cover clothing fit the constitutional foundation that supports all of copyright law?

Sorry, you're not on the list

In a 1954 case about mass-produced Venus de Milo-esque figurines that were used as the base for desk lamps, the U.S. Supreme Court decided that artistic works could receive copyright protection even when incorporated into useful items. The court ruled that as long as a work had sufficient originality, protection could not be withheld simply because the item in question was not aesthetically pleasing to all viewers. Twenty years later, Congress scaled back this broad precedent as part of the sweeping changes it made to all of copyright law.

Section 101 of the 1976 Copyright Act provides an exhaustive list of the items that can be protected by copyright. Clothing is not included. Designers and costume artists have tried to argue in U.S. courts that various articles of clothing should be protected as a pictorial, graphic, or sculptural work, because that category is on the list. However, not even this strategy is a sure winner, because clothing is more like sculpture than it is like the other two categories, and copyright protects only those elements of a sculptural design that can be entirely separated from its functional aspects.

Operating under the 1976 Act, the Second Circuit decided in 1989 that Halloween costumes could not be protected as soft sculptures because the artistic disguise element of the costume could not be effectively separated from the functional clothing aspects. In 1991, the U.S. copyright office endorsed this view, writing that since clothing the body serves as a useful function, costumes fall within the literal definition of useful article [and are therefore excluded from copyright protection]. These rulings set the bar high for granting copyright protection to anything a person can wear.

Like those of us who refuse to give up our wide ties and Dockers, there are a few Second Circuit decisions that buck the trend. In a 1980 case on a razors edge of copyright law, the court found that belt buckles could have both ornamental and utilitarian features, and that if the design of the buckle was sufficiently far afield from what was minimally necessary to keep ones pants up, it could be protected as a sculptural work. And in 2005, the Second Circuit required a district court to evaluate whether a costume had purely ornamental features, such as a sculpted bunny head, which could be entirely separated from the costumes clothing-like functional aspects. These two lines of judicial reasoning leave clothing designers with a paradoxical choice: when a design becomes less functional as clothing, it is more likely that it can receive protection under the traditional copyright framework. But as the functionality of a design decreases, its mass appeal evaporates as well and designers don't need protection from copiers if the public wont buy what they're selling (think: Bjork Swan Dress for one possible example).

All of the designs that provoked Anna Suis lawsuit against Forever21 are for traditional items of clothing that she created and Forever21 copied. As the law stands today, the district court in New York should side with Forever21, because Anna Suis designs have no artistic elements (apart from images or patterns on the fabric) that can be separated from the functional aspects of the clothes.

Legal for now, but will it stay that way?

Copyright law might not provide much protection for designers today, but it's possible that the law could change. Architects won an expansion of copyright coverage, which took effect in 1990. The change added scale models and completed buildings to the list of works that copyright protects, even though buildings (like clothing) have basic functional aspects that cant be separated from their designs.

There are many other similarities between architecture and fashion design. Both professions are often driven by considerations that are more aesthetic than functional. However, if clothes or buildings fall down when they are supposed to stay up, the buyer is guaranteed to be upset regardless of what the final product looks like. Drawings made during the design of a garment receive copyright protection, just like the blueprints for a building. Like architecture, the ultimate product of the fashion design process is a physical embodiment of the already-protected plans.

Compared to architects, it seems like fashion designers are getting a raw deal. So why shouldn't copyright law treat fashion the same way it treats architecture? The Constitution states that Congress may award copyrights in order to promote the progress of science and the useful arts. Would giving protection to clothing advance that lofty goal, or would it just enable haute couture creators to force copycat entrepreneurs like Ms. Anand and Forever21 out of business?

In response to the epidemic of copying, designers have pressured Congress to deliver increased legal protections for their craft. In August of 2007, Senator Charles Schumer (D-NY) responded by introducing the Design Piracy Prohibition Act (DPAA), a proposed federal law that would extend copyright protection to nearly any article of clothing (including mens and women's apparel, purses, hats, shoes, and eyeglass frames). Some big-name designers support the proposed legislation, but it faces criticism from industry groups and stiff opposition from copyright experts.

The new law would protect Anna Suis designs from knock-off artists, but might go too far. Copyright guru William Patry wrote on his blog in February of 2008 that the proposed legislation is so draconian, so unnecessary [it is] a bill that has only bad features. The law would provide three years of protection to any new design registered with the copyright office, impose penalties of up to $250,000 on each infringing design, and punish copycat retailers like Forever21 along with the imitation designers. Mr. Patry objects that the DPPA would surely be used to suppress competition, resulting in higher retail prices for all clothing. In a world where a pair of blue jeans could infringe copyright, affordable clothing might be unlawful as well as unfashionable.
Under current precedent, a win for Anna Sui in New York federal court seems unlikely. High fashions best hope for the future is that Congress might expand copyright to cover clothing like they did for architecture almost 20 years ago. However, the current version of the DPPA lacks universal support, and 2008 is an election year. Given the state of todays economy, a law that will likely favor wealthy foreign companies at the expense of the majority of U.S. consumers just doesn't sound like a good campaign strategy. It seems much more probable that the DPPA will die quietly in committee, and, at least until the 111th session of Congress, knock-off artists like Forever 21 will keep stealing the shirts off designers backs.