Fordham Law

Knock It Off: Intellectual Property Law Issues in the Fashion Industry

Susan Scafidi in D'Angelo Law Library, November 14, 2010

Media Source

Fashion is a hot legal topic.  Lawyers took note when a Brazilian college briefly expelled a student for wearing a mini-dress and lawyers debated whether a woman lawyer should wear open-toed shoes in court.  Hell’s Angels sued Alexander McQueen’s design firm for misusing their trademarked "death's head" skull and wings logo (Hells Angels Motorcycle Corporation v. Alexander McQueen Trading Limited, No. 10-08029 (C.D. Cal., complaint filed October 25, 2010))(another report is here). The lawsuit settlement  requires recall and destruction of items with the Hell's Angels design on them.  NPR covered copying in the fashion industry in an October 26, 2010 PlanetMoney podcast, Stealing Our Way to a T-Shirt.   A recent photoshoot (Hot Models Get Busy in Brooklyn Law Library), which played off the connection between fashion and the law, drew more media attention.

Fashion became more prominent in popular culture when Project Runway launched in 2004.  We’ve also had America’s Next Top Model, Make Me a Supermodel, the documentary series Signé Chanel (focusing on Karl Lagerfeld), and most recently, The Fashion Show.   Movies like The Devil Wears Prada, Sex and the City, and Zoolander have further raised the profile of the fashion industry.

Project Runway in particular has highlighted some of the IP issues related to the fashion industry.  Did a designer copy someone else’s design or design element?  Did the designer use an exact copy of an established pattern?  Doesn’t this dress look just like the "Derelicte" fashion in Zoolander?

Knock-offs have generated popular interest and captured the attention of some lawyers.

How to Spot a Fake (MSNBC video)

The United States Senate is considering a new bill, named the Innovative Design Protection and Piracy Prevention Act (IDPPPA), S. 3728 (introduced August 5, 2010, 111th Cong., 2d sess.), which would restrict knock-offs.  See The Innovative Design Protection and Piracy Prevention Act - Fashion Industry Friend or Faux? (Louis S. Ederer & Maxwell Preston, August 25, 2010).   The bill follows a previous failed attempt, called the Design Piracy Prohibition Act (DPPA).  The Freakonomics blog included a post about the bill (Copying Fashion:  Who Gains?  August 30, 2010; Kal Raustiala and Chris Sprigman guest blogging on “The Private Interest in Public Law”).

Kal Raustiala and Chris Sprigman also authored “The Piracy Paradox: Innovation and Intellectual Property in Fashion Design “, 92 Va. L. Rev. 1687 (2006).  Professor Randy Picker responded to Raustiala and Sprigman (Randal C. Picker, Of Pirates and Puffy Shirts, Va. L. Rev. In Brief (2007)), and other commentators debated the merits of the proposed bill.  Check our Law Journals page to find other law review commentary on intellectual property issues in the fashion industry.

Very few books focus exclusively on legal aspects of the fashion industry.  David Zarfes and Tony Bangs, in their luxury retailing course, used Fashion Law:  A Guide for Designers, Fashion Executives, and Attorneys (Guillermo C. Jimenez & Barbara Kolsun eds., New York:  Fairchild Books, 2010).  Fashion Law includes an overview of the legal issues in the fashion industry and has special chapters on intellectual property protection, counterfeiting, licensing, employment, commercial operations, marketing, advertising, retail leasing, and international aspects of the fashion business.  The book has a companion blog, Fashion Law Center, which summarizes each chapter and links to related resources.  Other resources include the “Fashion Designs” chapter in Global Issues on Copyright Law 18 (2009), and a brief CRS report:  Copyright Protection for Fashion Design (2009)(legal analysis of the DPPA).

 Related websites:

    * Counterfeit Chic (Susan Scafidi)
    * Johanna Blakley (see her TEDTalk, Lessons from Fashion's Free Culture)
    * Fashion Law Institute (Fordham University, New York)(Susan Scafidi, Director; funded by Diana von Furstenberg and the CFDA)
    * Case Clothesed:  For Fashion Law (New York Law School)
    * Siouxsie Law:  Good Lawyers Wear Black (see Hells Angels Sue Alexander McQueen)
    * (Revue virtuelle de Droit de la Mode = Rivista virtuale di Diritto della Moda (Jeanne Belhumeur))
    * International AntiCounterfeiting Coalition (IACC)((see their “How to Spot a Fake” page)
    * Council of Fashion Designers of America (CFDA)
    * American Apparel and Footwear Association (AAFA)