Sui generis solves court clog and overenforcement – fashion case study proves

V. CONCLUSION Fashion design drives one of the largest global industries; that industry spurs the economy and provides employment to millions. Although fashion design is afforded relatively low IP protection, it is largely productive in terms of profit and creative output. Yet even with this robust industry, there still remains a clamor for stronger protection of fashion designs and the apparel manufactured from these designs. As discussed, full-dress copyright protection is unnecessary, impracticable, and harmful due to several reasons: despite the lack of full-dress copyright protection, there exists enough creativity and incentive to support a continually growing industry that produces new works and new designers at a regular pace; current IP laws already provide some protection to fashion;166 current copyright laws are incompatible with fashion due to the useful article doctrine167 and the difficulty of distinguishing original from non-original works;168 and providing full-dress copyright protection will likely increase litigation, chill creativity, and drive up costs.169

This article therefore proposes a middle-ground: a sui generis system of protection that only protects fashion designs and pieces of apparel that are exceptionally original, and does so only against other articles that are substantially identical. The term “exceptionally original” is defined in this article as a fashion design that is, upon reduction to a fixed and tangible medium with sufficient specificity, the result of a designer’s own creative endeavor;170 and its variation over prior designs for similar types of articles is the only one of its kind;171 can only be attributed to the designer;172 can be regarded as separate and different;173 is significant; and pertains to the article’s appearance and not its function.174

This definition, being so narrow, will only protect a limited and select group of designs, and this standard of infringement, being so high, would only prohibit slavish copies.175 This level of protection and high legal standard for infringement would lead to the following results: first, it would encourage designers to be more innovative and not merely recreate adaptations of prior works—for despite the fact that there are incentives to develop new designs, there is no harm in encouraging designers to strive for a higher level of innovation that focuses on apparel designs per se.176 Second, the elevated standard of originality, due to its enumerated requisites, will make it easier for triers of fact to identify designs that are truly innovative, as opposed to the current vaguely-defined standard of “modicum of creativity” and the low threshold of protection it establishes.177 Third, a high standard for protection and a high standard for infringement will not chill creativity, as many opponents of granting full-dress protection to fashion designs fear.178 This sui generis system would only bring outside of the public domain a small, select, and exceptional class of designs, but would allow designers to reference and adapt these exceptionally original designs without fear of infringement liability, as long as they do not slavishly copy, point-for-point, the subject work that can serve as inspiration for other fashion designs.179 This high standard of infringement would not render the proposed system of protection meaningless because it aims to protect against products that potentially harm the market of the original designs due to the confusion that could result from point-for-point copies. With only a small, limited selection of fashion designs and pieces of apparel that can be protected by this sui generis system, and a large body of clearly permissible copies or “inspired-by” works allowed, it is unlikely that there will be a proliferation of numerous lawsuits that would drive up prices. Only a few designers will be able to genuinely claim that their designs meet the stringent standard of exceptional originality.180 Hence, there will be a significantly lower number of viable plaintiffs willing to expend resources to pursue a charge of infringement that is not likely to meet that high legal standard.

This article suggests that the IDPA, along with its foreseeable future versions that adapt its definition of “fashion design” and standard for infringement, is a viable compromise between full-dress copyright protection and the status quo. By granting a monopoly only to a very limited number of works, this article’s proposal achieves a balance between granting protection to fashion designs and allowing for a rich public domain of design elements from which other designers can draw inspiration. This measure would appease both the original designers and those in the industry, as well as the academe who believe that for fashion to continue developing and prospering, it should not be deprived of an expansive and invaluable public domain.