COPYRIGHTABILITY OF FASHION DESIGNS: Legislative Suggestions for Taiwan’s Copyright Law

The debate over whether or not fashion designs should be protected by copyright law is in full swing in the United States. Several legislative attempts to pass a “fashion bill” to protect three-dimensional fashion designs in the United States have been launched.
A similar issue in copyright law has emerged in Taiwan, where the copyright law does not protect the cut and shape of a three-dimensional fashion design, but only the pictorial and graphic features thereon. On June 11, 2008, the Intellectual Property Office of Taiwan issued Interpretation No. 09700051020, explicitly excluding three-dimensional clothes as “copyrightable works.” The debate over whether or not fashion designs should be protected by copyright law is in full swing in the United States. Several legislative attempts to pass a “fashion bill” to protect three-dimensional fashion designs in the United States have been launched.
Whether or not Taiwan should adopt a copyright law that protects three-dimensional fashion designs or not is an important question. Since 1983, when the United States launched negotiations with Taiwan concerning the protection of intellectual property rights, Taiwan’s copyright law has been under great external pressure from the United States. On July 10, 1985, an amendment to the Copyright Act of Taiwan, which is comprised of 52 articles, was promulgated. On May 25, 1989, the United States listed Taiwan on a “Priority Watch List” for a “Special 301 on Intellectual Property” to protect United States intellectual property rights in Taiwan. Ever since, for fear of retaliation, Taiwan has put forth 13 amendments to the Copyright Act of Taiwan. If the United States passes the fashion bill, Taiwan may feel pressure to do so as well.
The question of whether or not to pass such a bill or not in Taiwan shares similarities with the question in the United States. However, Taiwan has a unique spatio-temporal background. As the cradle of IT companies such as Acer, ASUS, and HTC, Taiwan has recently set the development of the design field as a national goal. In the interim, numerous independent fashion designers have launched their own fashion labels, many of which are small and medium-sized enterprises or “studios.” Shops flaunting Taiwanese designer names, like “Dleet” and “Eslite Spectrum AXES,” dot the streets of the Eastern District of Taipei. The creative industry has flourished with the maturation of students who graduated from Taiwan’s top fashion design schools, Shih Chien University and Fu Jen Catholic University, as well as those who studied abroad in New York and London, such as Jerry Wang (of the brand “Fu yue”) and Shao Yen.
 
Whether or Not to Pass a Fashion Bill: The Fallacy of Copyright Law for Fashion Design
Traditional copyright law tells us that its aim is to “promote the Progress of Science and useful Arts.” U.S. Const. art. I, § 8, cl. 8. However, in the realm of fashion design, it is quite questionable if real “progress” can exist. In 2013, Tom Ford released its spring collection, which included a dress that was “strikingly similar” to Norma Kamali’s Modern Sculpture dress, designed more than 20 years ago. Beyond fashion trends from 20 years ago, today’s designers refer to ancient clothing for creative inspiration. Christian Dior’s 2004 spring collection drew from ancient Egyptian culture. It is evident that fashion designers’ creations more or less come from imitation and “combinations and permutations,” from modern to historic times.
Three-dimensional fashion design, unlike the traditional fine arts, has its limitations. Its creativity lies in the exploration of cultural and social clues of the past. The premise of copyright law to “promote the Progress of Science and useful Arts” fails in this regard. The goal and the means of the fashion industry is not to find a progressive aspect for its works, but rather to find leeway between previous elements and their creativity. In short, as Barton Beebe states, the fashion process is “cyclical and renovative.”
From this standpoint, the fashion bill is not meant to help foster progress in fashion designs, but rather to keep a consumption-based social distinction. When a low-income purchaser buys a knockoff of a high-end fashion design, the designer does not lose a sale because the low-income purchaser is unwilling to buy the original design at its high price. Rather, the fashion bill is meant to protect those who can buy the high-priced fashion designs and sustain their social distinction by qualitatively, not hierarchically differentiating them from certain other groups while associating them with certain groups.
Potential Limitations on Creativity Posed by a Fashion Bill 
The fine arts, usually based on a blank canvas, have no limitations. Like the pictorial and graphic features on clothing that might range from decorative patterns to geometric vectors, or from Realism to Abstractionism, the creativity that a designer can deploy on a textile ensures variety in design. Examined from a deconstructionist view, the essence of pictorial and graphic features on clothing lies in colors and lines that guarantee the variety of forms of expressions of ideas. It is in the realm of “creation.”
By contrast, the cut and shape of three-dimensional fashion design, to put it analogously, is in a realm of “mimesis,” and by nature is “combinations and permutations” between limited shapes and cuts. The cut and shape of three-dimensional designs of clothing have their limitations per se.
This article posits that it is fair and just to use copyright law to protect the unlimited expressive forms of arts, including the graphic and pictorial features on clothing. On the other hand, it is unjust and unfair to confer a monopoly by the exertion of copyright law on forms of three-dimensional fashion designs that are within limits per se. If “elements,” like cuts and shapes, are deemed “resources,” then a monopoly of limited resources means unequal distribution.
Especially in a country where the fashion design industry is just starting and flourishing, adoption of copyright law protecting three-dimensional fashion design as a whole, rather than just the pictorial and graphic features thereon, may hinder the creativity of designers, not only because to some extent, creativity always comes from “imitation,” but also because such a law may instill a fear of unnecessary legal risks, thereby discouraging designers.
For independent designers who are not legal professionals, it is ambiguous what constitutes an infringement or violation of criminal copyright law. “Using textiles of the same colors? Similar contours? Similar design methods?” proposed designer Joe Haung via message. It is also hard to decide “who is the original inventor of [certain] creativity,” Le-Chang Yeh, Assistant Professor in the Department of Fashion Design at Shih Chien University, wrote via email.
In a country that utilizes a criminal statute to punish those who disobey copyright law, if it is hard for designers to predict whether or not their “imitative” behaviors are illegal, i.e., if their imitative behaviors have exceeded the threshold for criminal copyright law, the copyright criminal statute fails to offer adequate guidance and advice, and thus fails to meet the requirement for sufficient clarity in criminal statutes, legal certainty, and legal predictability.
For multinational corporations, litigation expenses are manageable, but for independent designers, a legal war can cost them everything they have earned, consume their precious time, and pose serious mental burdens on them. Within the construction of Taiwan’s law, in principle, the losing side does not have to pay the other party’s attorney’s fees. Even if designers win a case, they cannot recover attorney’s fees, not to mention the cost of their time, in the common scenario.
Although some might argue that the fashion bill could set a high threshold for infringement so that it is not easy to infringe on others’ copyrights except by copying highly-unique fashion works, in legal practice, the standard formulated by previous judgements does not guarantee what will happen in the real world. Although it might be difficult to win, a plaintiff may insist on initiating a legal war, because a lawsuit usually begins by a plaintiff “believing” that someone else has infringed his or her rights and receiving encouragement from lawyers.
As Professor Pei-Yu Huang from the Textiles and Clothing Department of Fu Jen Catholic University, said via email, “This kind of legislation will limit design creativity. In the end, people will be left with ‘uniforms’ from large brands to wear. This is not an idea that fashion designers like.”
As previously mentioned, creativity more or less comes from imitation. According to Plato, imitation is the general principle of art. Aristotle characterized art as being imitative by nature. Every designer’s success relies on a long process of imitation and gathering artistic elements. With the prevalence of the Internet, design elements are easier to gather, which fosters creativity among designers.
In this digital age, it becomes easier for two people from different places to coincidently have similar ideas. It has become easier to gather various elements online, employ, arrange, and combine them, by a process of “combinations and permutations.” As Cheng-Ta Yin, Director of the Industry Service Sector of Taiwan Textile Research Institute, said via email: “[With the development of] the Internet, similar designs can be found by everyone.” When this happens, the factual victim will always be an independent designer rather than multinational enterprises, no matter what ruling is finally articulated by the court.
 
Alexis Kuo (郭怡妘) is an L.L.M. candidate, 2017, at NYU School of Law.