Friday, January 19, 2007

How fashion world gets along without IP rights enforcement, along with a question for Steve Jobs

You know those designer threads all the actresses like Penelope Cruz (Chanel) wear to the Golden Globes and other awards programs? I was watching one of the morning shows the other day, and they were doing a story on the knockoffs that were already on their way to retailers. How could that be, I wondered? Why weren't the manufacturers sued for violating the designers' intellectual property rights?

Turns out, the fashion industry is different. You cannot copyright a dress design. You can trademark a brand or a signature design detail, but you cannot copyright the design of an article of clothing. A post in the UUC Law Blog entitled "Fashion's Piracy Paradox" explains.
A brief doctrinal note: Why is fashion design mostly unprotected by IP law in the U.S.? Take a look at the paper for a full explanation, but in brief, although trademarks protect famous fashion industry marks (Gucci, Prada, etc.), copyright protection has been withheld in the U.S. from virtually all fashion designs due to the “useful articles” rule. The rule declares that copyright does not protect the aesthetic components of useful articles like apparel unless a particular garment’s aesthetic appeal is somehow “separable” from its usefulness in covering the human form. On this basis, courts have generally rebuffed plaintiffs’ claims of copyright infringement arising from fashion knockoffs.
The post and comments go on to discuss several related issues, mostly unique to the fashion industry, concerning innovation and intellectual property protection. It's worth a look. What it boils down to is that innovation in the fashion industry is so rapid, almost by definition, that few in the industry want the heavy hand of copyright protection slowing things down.

What I find intriguing about this is that advocates of strongly enforcing IP rights in such industries as the computer industry usually base their case on the idea that IP protection rewards and encourages innovation by protecting the rights of creators. Now, obviously, the fashion industry is not a model for any industry other than itself. But its experience does suggest the whole case for IP protection may not be quite as black-and-white as advocates claim. Apparently in at least one case, innovation and an open approach to IP rights coexist quite nicely.

In particular, I wonder about a company like Apple. They are very aggressive in protecting not only their technology but also their design features -- and got downright heavy-handed this week in enforcing their IP rights to the iPhone's graphic interface.
Savvy coders have developed iPhone "skins" that work with most smartphones based on the Windows Mobile and Palm operating systems. The issue has angered Apple to such an extent that it has sent its lawyers after a number of those involved - both directly and indirectly. The skins don't add any new functionality to the devices, but make use of the iPhone's copyrighted icons to create a UI that distinctly resembles Apple's hybrid mobile phone. Soon after the skins were uploaded to the Brighthand and Xda-developers internet message boards, Apple unleashed its legal team, who sent removal letters to at least one of the websites hosting the files.

Apple's lawyers also sent letters to journalists who simply reported on the fact that the skins were available.

"It has come to our attention that you have posted a screenshot of Apple's new iPhone and links that facilitate the installation of that screenshot on a PocketPC device," law firm O'Melveny & Myers LLP wrote to Paul O'Brien, who runs the MoDaCo website.
Question for Steve Jobs: If you're going to sell your products like fashion accessories, why shouldn't the fashion industry's less stringent approach to IP rights apply?

1 comment:

Anonymous said...

Smart. You know, given the way the market place continually wants to trade in utility for fashion identity, why stop at Apple?