9 Wake Forest Intell. Prop. L.J. 155
The author observes that although increasingly, modern day fashion is perceived as art, the United States currently fails to protect fashion designs as a work of art under its intellectual property laws. The author contends that fashion designs should have protection against design piracy, the practice of copying original fashion designs and selling the apparel under a different label, and not only the practice of counterfeiting articles. Copyright law does not protect “useful articles” and has traditionally denied copyright protection to fashion designs because clothing garments have been viewed as useful articles and not artistic creations. The note proposes that protecting against design piracy will prevent copying and in turn diminish the sale of counterfeit goods. The note reviews and discusses several issues, including: (I) the attempts of fashion pioneers over the past century to establish protection for fashion designs as well as the present protection offered to fashion designers and the types of designs that merit protection; (II) the intellectual property protection provided for fashion designs in other countries; (III) introduces and analyzes the proposed Design Piracy Prohibition Act and the newly passed bill, the Enforcement of Intellectual Property Rights Act of 2008; and (IV) the arguments that have been made against and for protection of fashion designs.