Can fashion designs be copyrighted?

Recording artist Gwen Stefani filed an infringement suit in 2007 against Forever 21™, alleging that the "fast fashion" retailer improperly used the heart and heart/box trademarks from her upscale Harajuku™ line on its own merchandise in a "virtually indistinguishable" way. In particular, Stefani's suit says that Forever 21™ changed only two words in the identifiable Harajuku design so that "Harajuku" became "Forever" and "Lovers" became "Love." This change, alleges the lawsuit, is "inconspicuous and likely to go unnoticed by the consumer."

Will Stefani's suit succeed?

The standard of judging whether a trademark infringement has occurred is whether the objected-to-use creates a "likelihood of confusion" with the trademark holder's product. Currently, although registered logos, brands, and patterns may receive protection, things like dress, purse, and shoe cuts may be copied without legal problems. Textile designs, however, may be protected, and that is where Stefani hopes to prevail; indeed, she seems to have a strong case based on merely looking at the two designs as they are quite similar.

Stefani's suit isn't the first to come across the desks of Forever 21™ legal representatives, though. Design legend and president of the Council of Fashion Designers of America™ Diane von Furstenberg sued the retail chain ini 2006 for allegedly infringing on her $325 Cerisier dress with Forever 21's $32 Sabrina in pattern, color, and measurements.

Both lawsuits seek removal of Forever 21's products from the market as well as unspecified monetary damages.

The problem, according to designers, is that their pieces are sold in large department stores and small high-end fashion boutiques whereas Forever 21 is famously low-priced and accessible to the masses; the reputation and goodwill of their businesses are at stake, they say, when a consumer gets a product thinking it's an original designer label but finds something of lower quality instead.

Moreover, designers say, the Internet has made copying just off the drawing boards or runway designs even easier since photographs can be transmitted around the world instantaneously.

So should fashion design be copyrightable?

The Council of Fashion Designers, founded in 1962, says yes and has asked Congress to pass a federal law that would give designs three-year copyright protection similar to that currently granted other art forms. Along with von Furstenberg as president, the council has included Tommy Hilfiger, Kate Spade, Kenneth Cole, Ralph Lauren, and Vera Wang among its board of directors; past presidents include Oscar de la Renta, Perry Ellis, and Bill Blass. European designers are also supportive of this measure as American copies certainly make their way across the Atlantic as well.

On the other hand, law professors Kal Raustiala (UCLA) and Christopher Sprigman (UVA) argue that copyrighting fashion would be a bad idea because imitation breeds more ideas, thus improving the fashion industry and business overall. This type of argument is common in talking about the marketplace of ideas—prohibiting monopolies, the theory goes, is a good thing.

But then if we consider designers as artists, aren't they, too, entitled to protection of their creations? Not according to a 200-year-old United States case which found that clothing is a utilitarian item, not artistic expression or scientific invention, and therefore, not copyrightable. Is this still a valid assessment of clothing in this day and age?

There are a lot of questions involved in this issue but no easy answers. Unfortunately for fashion designers, though, it seems unlikely that Congress will even act on their request as it's already been sitting around for over a year with no talk of voting in sight.

So it seems that at least for now, the only thing that will decide whether you get a von Furstenberg original or a knock-off is your wallet.