What is the "law of fashion"?

Posted by Charles Colman

"Fashion law" is roughly analogous to "art law": it is a hodgepodge of rights and obligations that stem from different sources of federal, state law, and even local law.  A "fashion lawyer" must have expertise--or at least the ability to quickly acquire expertise--in customs, copyright, trademarks, counterfeiting, contracts, employment law, advertising law, real estate, and undoubtedly other area of law as well.  Some of these issues are not in any way unique to the fashion industry, some have "wrinkles" that require a modicum of fashion-related knowledge, and some are entirely fashion-specific.  (Books addressing these diverse legal issues remain few and far between; probably the foremost reference guide for the non-specialist is Fashion Law: A Guide for Designers, Fashion Executives, and Attorneys.)


"Fashion law" was not widely recognized as a distinct practice area until very recently, and the term still provokes confusion or amusement among (poorly dressed) lawyers.  With that said, the law of fashion has received increasing attention among both practicing lawyers and legal academics in recent years because of the heated debate over intellectual property protection for fashion designs.


Why the debate?  One might reasonably assume that original fashion designs can be copyrighted just like any other form of creative output.  Wrong.  The U.S. Copyright Act excludes from copyrightable subject matter "design[s] of a useful article", so clothing-- "useful" insofar as it covers the body to provide warmth or enables one not to exercise-- generally receives no protection under copyright law.  Copyright law does recognize a narrow exception for elements of apparel which are "physical or conceptually separable" from the garment, such as images printed on a t-shirt or, most famously, a belt buckle that was more sculptural than functional.  But in general, U.S. copyright law leaves fashion designers vulnerable to so-called "knock-offs," as long as the copyist doesn't go too far and engage in counterfeiting-- or, as I will surely discuss in future postings-- infringe on the protected "trade dress" of a widely recognized design.


A bill introduced by Senator Charles Schumer (D-NY) earlier this year, with the rather unwieldy name "The Innovative Design Protection and Piracy Prevention Act," would change the legal landscape described above by according copyright-like protection to "unique" fashion designs.  The only prediction anyone can make with certainty is that the bill's effect would be largely unpredictable.  (N.B. Any comments made on this blog concerning the Schumer bill, other fashion-related legislation, fashion law in general, or the temperature outside, for that matter, reflect my personal views only and not those of the American Bar Association, where I serve as the Co-Chair of the Fashion Design Legislation Subcommittee.)  While the contents of the bill are hardly newsworthy at this point, I'll tell you more about them in future posts-- and keep you posted on the bill's progress as well.


In the meantime, read Barbara Kolsun and Guillermo Jimenez's book, preferably by purchasing it through the preceding link so I get a cut of the sale, or just schedule an appointment to come in and talk to me.  Offer includes a drink, Mad Men-style.