The Most Fascinating Kind of Art: Fashion Design Protection as a Moral Right

* Associate, Skadden, Arps, Slate, Meagher & Flom, LLP; J.D., 2012, New York University School of Law; B.A., 2009, The University of Georgia. The views and opinions expressed in this Note are mine alone and do not represent the views of Skadden, Arps, Slate, Meagher and Flom, LLP.

[1] Andy Warhol, The Philosophy of Andy Warhol 92 (1975).

[2] Discussion of protection for fashion design (often along with other useful articles) has arisen many times throughout the last 100 years. A sui generis design protection clause that was struck from the 1976 Copyright Act just before it was passed would have granted up to ten years of protection for useful articles that were not “staple or commonplace.” See S. 22, 94th Cong. (1975), reprinted in S. Rep. No. 94-473, at 162 (1975).

[3] See Innovative Design Protection Act of 2012, S. 3523, 112th Cong. (2012) [hereinafter IDPA]; Innovative Design Protection and Piracy Prevention Act, H.R. 2511, 112th Cong. (2011); S. 3728, 111th Cong. (2010) [hereinafter IDPPPA]; Design Piracy Prohibition Act, H.R. 2196, 111th Cong. (2009); H.R. 2033, 110th Cong. (2007); S. 1957, 110th Cong. (2007) [hereinafter DPPA]; H.R. 5055, 109th Cong. (2006).

[4] See, e.g., Jonathan M. Barnett, Shopping for Gucci on Canal Street: Reflections on Status Consumption, Intellectual Property, and the Incentive Thesis, 91 Va. L. Rev. 1381 (2005); C. Scott Hemphill & Jeannie Suk, Remix and Cultural Production, 61 Stan. L. Rev. 1227 (2009); C. Scott Hemphill & Jeannie Suk, The Law, Culture, and Economics of Fashion, 61 Stan. L. Rev. 1147 (2009) [hereinafter Hemphill & Suk, Fashion]; Kal Raustiala & Christopher Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, 92 Va. L. Rev. 1687 (2006) [hereinafter Raustiala & Sprigman, The Piracy Paradox]; Kal Raustiala & Christopher Sprigman, The Piracy Paradox Revisited, 61 Stan. L. Rev. 1201 (2009). There have also been numerous student notes written on the topic in recent years. See, e.g., Sara R. Ellis, Note, Copyrighting Couture: An Examination of Fashion Design Protection and Why the DPPA and IDPPPA are a Step Towards the Solution to Counterfeit Chic, 78 Tenn. L. Rev. 163 (2010); Shelley C. Sackel, Note, Art is in the Eye of the Beholder: A Recommendation for Tailoring Design Piracy Legislation to Protect Fashion Design and the Public Domain, 35 AIPLA Q. J. 473 (2007).

[5] See, e.g., CFDA, CFDA Design Manifesto, http://www.cfda.com/the-latest/cfda-design-manifesto-3 (last visited Aug. 16, 2012) (“All designers deserve the right to design protection and only the creator of an original design should profit from that design. Taking someone’s work and calling it your own is wrong and robs the designer of a rightful return on their investment.”) (quoting Stephen Kolb, CFDA CEO).

[6] A bill that has been circulating throughout Congress in different forms since 2006 would extend protection for three years from the “date of commencement of protection” to “the overall appearance of an article of apparel,” which includes “original elements” that “provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles” against infringing designs that are “substantially identical,” meaning “so similar in appearance as to be likely to be mistaken for the protected design, and contains only those differences in construction or design which are merely trivial.” See IDPA, supra note 3.

[7] See infra Part I.

[8] See Innovative Design Protection and Piracy Prevention Act: Hearing on H.R. 2511 Before the Subcomm. on Intellectual Property, Competition, and the Internet of the H. Comm. on the Judiciary, 112th Cong. 4 (2011) [hereinafter 2011 Hearing] (statement of Lazaro Hernandez, Designer and Co-Founder, Proenza Schouler).

[9] See, e.g., Design Law-Are Special Provisions Needed to Protect Unique Industries?: Hearing Before the Subcomm. on Courts, the Internet, and Intellectual Property of the H. Comm. on the Judiciary, 110th Cong. 20 (2008) [hereinafter 2008 Hearing] (statement of Hon. William D. Delahunt, Member, H. Comm. on the Judiciary) (“America has become the world leader in fashion design. This is not just an LA / NY phenomena, it’s happening across America. Fashion design businesses are proliferating and growing.”); id. at 24 (statement of Narciso Rodriguez on behalf of the CFDA) (“More and more young Americans are going into fashion, and America now leads the world in fashion design.”); A Bill to Provide Protection for Fashion Design: Hearing on H.R. 5055 Before Subcomm. on Courts, the Internet, and Intellectual Property of the H. Comm. on the Judiciary, 109th Cong. 85 (2006) [hereinafter 2006 Hearing] (statement of Christopher Sprigman, Associate Professor, University of Virginia School of Law) (“Now, the first thing I just want to remind you of is something that no one has disagreed with, which is that the fashion industry is thriving.”).

American designer Michael Kors’s company recently went public with a valuation of $3.8 billion, making it the largest public offering of a U.S. fashion company, with shares that performed better than the average U.S. IPO in first day trading in 2011. See Kors shares open 25% higher, Financial Times, Dec. 14, 2011, http://www.ft.com/intl/cms/s/0/47e920f0-267d-11e1-9ed3-00144feabdc0.html#axzz1gj40NG00.

[10] Raustiala and Sprigman go further to argue that copying actually promotes innovation by rendering old, copied designs less valuable to consumers, thus providing an incentive for designers to create new fashions, and advancing the fashion cycle. Raustiala & Sprigman, The Piracy Paradox, supra note 4. A common retort to this argument is that protection should only extend to exact or “line-by-line” copies, preserving the ability of all designers to draw inspiration from each other, and that the term of protection should be short, allowing designers to easily revive old designs, even in “line-by-line” copies. See, e.g., Hemphill & Suk, Fashion, supra note 4.

[11] I will use the terms “fashion copyright” and “design protection” to refer both to the particular protection scheme proposed by the IDPA, see supra notes 3 & 6, and more generally to any copyright-like scheme for fashion protection that would extend protection to all designs without prior examination and would judge for infringement based on a “similarity” standard.

[12] H.R. 2196, 111th Cong. (2009); DPPA, supra note 3; H.R. 2033, 110th Cong. (2007); H.R. 5055, 109th Cong. (2006).

[13] IDPPPA, supra note 3.

[14] IDPA, supra note 3.

[15] See supra note 6.

[16] Professor Jeannie Suk of Harvard and Professor Susan Scafidi of Fordham have both testified before Congress in support of increased design protection. See 2011 Hearing, supra note 8, at 13; 2006 Hearing, supra note 9, at 77. Although not all fashion designers have expressed support for increased protection, I refer to fashion designers generally because the CFDA purports to represent designers as a group and has sent a number of designers to testify before Congress on its behalf in supporting the DPPA and the IDPPPA. Further, designer Jeffrey Banks testified that “there is a groundswell of support for this bill” among his colleagues. 2006 Hearing, supra note 9, at 189.

It is certainly plausible that many designers oppose an increase in design protection, either because they fear that its benefits will only be available to large design houses with the resources to enforce their rights, perhaps to the detriment of some designers, or simply because they share the feelings of Gabrielle “Coco” Chanel who “saw the widespread copying of her couture originals as confirmation that they had gone beyond mere fashion to embody style itself.” Nancy J. Troy, Chanel’s Modernity, in Chanel 20 (Harold Koda & Andrew Bolton eds., 2005).

[17] U.S. Const. art. I, § 8, cl. 8.

[18] See William M. Landes and Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Legal Stud. 325, 328 (1989) (“In [copyright’s] absence anyone can buy a copy of the book when it first appears and make and sell copies of it. The market price of the book will eventually be bid down to the marginal cost of copying, with the unfortunate result that the book probably will not be produced in the first place, because the author and publisher will not be able to recover their costs of creating the work.”). This economic view serves as the primary justification for copyright under U.S. law. See, e.g., Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (“[T]he limited grant [of copyright privileges] is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.”); Pamela Samuelson, Should Economics Play a Role in Copyright Law and Policy?, 1 U. Ottowa L. & Tech. J. 2, 3 (2003) (“The principal justification for intellectual property (IP) laws in the Anglo-American tradition is economic.”); Alfred C. Yen, The Interdisciplinary Future of Copyright Theory, 10 Cardozo Arts & Ent. L. J. 423, 425 (1992) (“The … theory states that copyright exists solely to provide necessary economic incentives for the production of creative work.”).

[19] See Landes & Posner, supra note 18, at 328.

[20] Copyright protection is afforded to “useful articles” only to the extent that their “design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U.S.C. § 101 (2006) (defining “pictorial, graphic, and sculptural works” as “works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned”). “Useful articles” include any object that has an intrinsic utilitarian function, even if it has other, non-utilitarian functions. See Melville B. Nimmer & David Nimmer, Nimmer on Copyright §2.08[B][3]. Thus clothing, which serves the utilitarian function of covering the body, is a useful article even though it may have other aesthetic or signifying purposes.

The separability test applies to both physically and conceptually separable elements of an article of design such that “design elements that can be conceptualized as existing independently of their utilitarian function…are eligible for copyright protection.” Chosun Int’l, Inc. v. Chrisha Creations, Ltd., 413 F.3d 324, 329 (2d Cir. 2005) (internal quotation marks omitted); see also Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989 (2d Cir. 1980) (conceptual separability sufficient for copyright). However, designs printed on clothing fabrics are copyrightable, see Scarves by Vera, Inc. v. United Merchs. & Mfrs., 173 F. Supp. 625 (S.D.N.Y. 1959); Peter Pan Fabrics, Inc. v. Brenda Fabrics, Inc., 169 F. Supp. 142 (S.D.N.Y. 1959).

[21] Fashion products bearing logos and other source-identifying marks are protected under the Lanham Act against the sale of goods that bear confusingly similar marks, 15 U.S.C. § 1125(a) (2006), dilutive marks, § 1125(c), or counterfeit marks, § 1114. Counterfeit goods of the type seen on Canal Street, while an ongoing plague on the fashion industry, are not the subject of this Note.

[22] The shape of a product may be protectable as “trade dress” when it is so distinctive as to have “secondary meaning”-i.e. consumers associate the design of the product with its source and consider the design to be source identifying. See Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205 (2000) (holding that product design trade dress can never be inherently distinctive and thus designs can only be protected upon a showing of secondary meaning).

However, product designs that have aesthetic or utilitarian functionality generally are not protectable. See TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 29 (2001). Furthermore, in order to be protected against trade dress dilution, which is more expansive than confusion protection, trademarks and trade dress must be shown to be “famous.” See 15 U.S.C. § 1125(c)(1) (2006).

[23] Design patents are available for some novel fashion designs, but the high price and difficulty of achieving design patents for individual garments makes them generally impractical for the fashion industry. See, e.g., Sackel, supra note 4, at 493. Because it can take over a year to receive a design patent, they are most useful for items like handbags and shoes that are sold continually for many seasons.

[24] See Raustiala & Sprigman, The Piracy Paradox, supra note 4, at 1698-1704 (describing “fashion’s low-IP equilibrium” and reviewing reasons that copyright, trademark, and patent law exclude protection of fashion designs).

[25] See, e.g., 2006 Hearing, supra note 9, at 85 (statement of Professor Christopher Sprigman) (“[N]o one has disagreed…that the fashion industry is thriving…We have U.S. firms participating in an industry that is approaching $1 trillion around the world. Never in our 217-year history of copyright has Congress extended copyright or copyright-like protections to the fashion industry.”).

[26] The problem of defining “art,” especially for the purposes of legal analysis, has continually plagued courts and academics. I use the term “art” in this Note in two senses: to refer to both the popular conception of “works of art” or “forms of art” and in a more narrow way to the work that critics, museums, and galleries generally refer to as “art.” This dual use of the term is in my view an inescapable symptom of the ever-changing and indefinable nature of the term itself.

[27] See generally infra Part II.

[28] See infra notes 91-97 and accompanying text.

[29] See infra notes 115-122 and accompanying text.

[30] See infra notes 88-90 and accompanying text.

[31] See infra notes 98-103 and accompanying text.

[32] See infra notes 104-106 and accompanying text.

[33] See infra notes 114-126 and accompanying text.

[34] See supra note 18 and accompanying text.

[35] VARA, 17 U.S.C. 106A (2006).

[36] See, e.g., California Art Preservation Act, Cal. Civ. Code § 987 (West 2012); N.Y. Arts & Cult. Aff. Law § 14.03 (McKinney 2012).

[37] See 17 U.S.C. 106A(a) (preventing modification & misattribution that would be prejudicial to an artist’s honor or reputation); Cal. Civ. Code § 987(a) (finding that “physical alteration or destruction of fine art, which is an expression of the artist’s personality, is detrimental to the artist’s reputation”); N.Y. Arts & Cult. Aff. Law § 14.03(1) (preventing modification when damage to the artist’s reputation is reasonably likely). See also John Henry Merryman, The Refrigerator of Bernard Buffet, 27 Hastings L.J. 1023, 1025 (1976) (“Copyright…protects the artist’s pecuniary interest in the work of art. The moral right, on the contrary, is one of a small group of rights intended to recognize and protect the individual’s personality[, including the] right to one’s identity, to a name, to one’s reputation…”); Henry Hansmann & Marina Santilli, Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis, 26 J. Legal Stud. 95, 104 (1997) (moral rights serve “in important part, to protect not just artists’ personal feelings about their creations but rather (or in addition) their reputational interests”).

[38] Joseph Abboud, Threads: My Life Behind the Seams in the High-Stakes World of Fashion 79 (2005).

[39] Raustiala & Sprigman, The Piracy Paradox, supra note 4 (describing the “low-IP equilibrium” and suggesting that copying might in fact lead to more innovation in the fashion industry since widespread copying often makes designs undesirable to early adopters who then demand new work from designers).

[40] Landes & Posner, supra note 18, at 330 (“[F]or works that are faddish-where demand is initially strong but falls sharply after a brief period-copyright protection may not be as necessary in order to give the creator of the work a fully compensatory return.”).

[41] Id. at 329 (“[I]n the case of works of art-such as a painting by a famous artist-a copy, however accurate, may be such a poor substitute in the market that it will have no negative effects on the price of the artist’s work.”).

[42] Their argument is drawn straight from Landes and Posner’s theory: “because modern technology has reduced the time it takes to make copies as well as enabled more perfect copies to be made at low cost, the need for copyright protection has increased over time.” Id. at 330. Generally, the quality of copies in fashion has not been as affected by technological changes as it has in other industries like music and film. I address the availability of “more perfect copies” in fashion in Part II.B infra.

[43] See, e.g., 2006 Hearing, supra note 9, at 13 (statement of Jeffery Banks, Fashion Designer, on Behalf of the CFDA) (“We can’t compete against piracy so the creativity and innovation that has put American fashion in a leadership position will dry up.”); id. at 79 (statement of Susan Scafidi, Professor, Fordham Law School) (acknowledging that fashion has historically not received much intellectual property protection but that there are now “changed circumstances that indicate a greater need for some protection today.”).

[44] See, e.g., Sara B. Marcketti and Jean L. Parsons, Design Piracy and Self-Regulation: The Fashion Originators’ Guild of America, 1932-1941, 24 Clothing & Textiles Research J. 214, 216 (2006) (noting that in the late-19th century, “styles were copied so quickly that any innovative style was available to all consumers virtually immediately, at successively lower price points”); Piracy on the High Fashions, Vogue, July 1933, at 28:

It is a perfectly legitimate practice for American dress houses to send buyers to the Paris Openings, where they buy only one of each model they select. These are brought back and copied exactly in largish numbers for customers who are dying for a “French model.”…But there is no sin where none is felt; the French are aware that American shops buy their models for copying. That has become an accepted fact.

[45] See, e.g., 2006 Hearing, supra note 9, at 12 (statement of Jeffery Banks) (“Copying, years ago, would take anywhere from three to four months to a year or more. But as I said, all that changed with new technology…a new and original design…can be stolen before the applause has faded thanks to digital imagery and the internet.”).

[46] 2011 Hearing, supra note 8, at 99 (statement of Lazaro Hernandez); see also 2006 Hearing, supra note 9, at 11 (statement of Jeffrey Banks) (“In the blink of an eye, perfect 360 degree images of the latest runway fashions can be sent around the world…And that…is the main reason I sit before you today.”).

[47] 2006 Hearing, supra note 9, at 81.

[48] See, e.g., Russ VerSteeg, The Roman Law Roots of Copyright, 59 Md. L. Rev. 522, 522 (2000) (“Modern technology-specifically the computer and its uses via the Internet-increasingly demands that we reconsider and rethink copyright law. This phenomenon is not new. Before computers made us reassess copyright law, other once-new forms of copying, communication, and information transmission did the same for the following: the satellite, the photocopier, the VCR, radio, sound recording, photography, the printing press, and various forms of television, including cable television.”).

[49] These technological advances is film, music, and publishing not only affected the speed with which copies could be made and disseminated, but also drastically improved the quality of those copies, particularly in music and film. I discuss the impact of the quality of copying in fashion in Part I.B infra. See also supra note 41 and accompanying text.

[50] Most of the arguments can also be made about visual art. The question of the necessity of copyright protection for art is beyond the scope of this Note, but it is worth noting that copyright in visual art is generally used to protect the market for licensing images of art works and for derivative goods like postcards, posters, and coffee mugs that are sold in museum gift shops. Such derivative markets do not generally exist in fashion and further, the ability of a photograph of a fashion design to infringe the copyright in the garment has not been proposed in the discussion of fashion copyright.

[51] In the late 18th century, Rose Bertin, the designer of choice for Marie Antoinette, grew to fame for her role of dressing the “grade Pandora” doll that traveled throughout Europe and the New World and was “one of the main ways to propagate fashions before the regular publication of fashion magazines.” Rebecca Arnold, Fashion: A Very Short Introduction 13 (2009).

[52] Id. at 15 (The 19th century saw “the growth of fashion media, photography, and by the end of the century, film, which disseminated imagery of fashion more widely than ever before, and fuelled women’s desire for more variety and quicker turnover of styles”).

[53] For fashion companies, a strong web presence and creative use of social media is generally praised as marker of good branding and public relations. See, e.g., Cate T. Corcoran, Everyone’s Doing It: Brands Take on Social Media, Women’s Wear Daily, Sep. 28, 2009, at 20, available at http://www.wwd.com/media-news/digital/everyones-doing-it-brands-take-on-social-media-2318508 (discussing the “Digital IQ” study by NYU professor Scott Galloway that ranked the digital competence of 109 brands, and pointing out that several bloggers “were given front-row seats at the D&G show…complete with desks and laptops for instant transmission, knocking…retail heavyweights to the second row”).

[54] Julius Henry Cohen, Law and Order in Industry: Five Years’ Experience 88 (1916).

[55] Paul Henry Nystrom, Economics of Fashion 425 (1928).

[56] The Guild was soon ordered to disband because of antitrust violations. Fashion Originators’ Guild of America v. FTC, 312 U.S. 457 (1941).

[57] 2011 Hearing, supra note 8, at 94 (statement of Christopher Sprigman) (“I think the speed of copying hasn’t really changed very much in 20 years…[T]he fax machine really changed the speed of copying.”).

[58] Professors Raustiala and Sprigman introduced new economic data on the fashion industry to Congress in the 2011 hearings on the IDPPPA, but they were not nuanced enough to answer these questions. 2011 Hearing, supra note 8, at 81.

[59] Landes & Posner, supra note 18, at 329. This is a consideration that the proponents of copyright-like protection for fashion have discussed less thoroughly than the first-mover advantage. This is probably because unlike in other creative industries like music and film, technological change has not had a drastic impact on the quality of fashion copies. The quality of fashion copies tends to decrease as the speed at which the copies reach the market increases, which is nearly unavoidable due to the physical (as opposed to digital) nature of the goods.

Furthermore, an element of this exception to the economic theory of copyright is that “the [imperfect] copy may have a positive effect on [the] price [of the original] by serving as advertising for [a creator’s] works.” Landes & Posner, supra note 18, at 329. Fashion designers quickly rebuff this argument, it seems, to avoid surrendering to an argument that is equivalent to the old adage that “any press is good press.” For example, during the 2006 Congressional hearings on the DPPA, designer Jeffery Banks complained that copies of dresses worn on the red carpet at the Academy Awards appeared days later on morning shows and were on sale within a week. Congressman Berman suggested that this benefitted the designers by publicizing their brands and designs, to which Mr. Banks countered, “That sells your personality as a designer, but that doesn’t sell your dress.” Of course designers make most of their money by selling “their personality,” both directly through licensing deals and indirectly through the effect that branding and publicity have on the perceived value of their designs. In the end Mr. Banks argued that the harm to designers occurs when the dress is knocked-off so quickly that consumers who could afford to buy the original fashion are dissuaded from purchasing because the knockoffs have in a sense tarnished the appeal of the fashion to them. 2006 Hearings, supra note 9, at 183-84.

[60] There is, of course, the argument that the existence of cheap copies cheapens the value of the original design and dissuades consumers of the original from purchasing it once they know that the item can be purchased by less wealthy consumers at a significantly lower price. This class-based, sociological tarnishment of designs, however, is akin to the problem of brand tarnishment that trademark dilution law seeks to redress, further indicating that a legal regime focused on the protection of reputation and consumer perception is more suited for the fashion industry than copyright law.

A second argument could be made that the two distinct classes of consumers described above are the result of an artificial inflation in prices for original designs because of the availability of knock-offs. That is, in a world without knock-offs, prices for originals may exist at some median price such that both classes of consumers could afford to buy originals. However, once copying begins, designers of originals start to lose revenue to knock-off manufacturers and then must increase prices to account for the losses to a point where the buyer of the knock-off can no longer afford to buy the original. It follows from this that design protection would lower costs and make original fashions more affordable to the public. A full economic analysis of these issues is beyond the scope of this Note, but it is worth considering that the basic cost of manufacturing original couture and ready-to-wear designer goods may be so high that members of the “general public” could never afford to buy designer originals, even at cost, and so no revenue could be lost to affordable knock-offs, meaning there would be no need to inflate prices of originals to account for losses to knock-offs.

[61] 2006 Hearing, supra note 9, at 187 (statement of Susan Scafidi).

[62] See id. at 83 (statement of Susan Scafidi) (“While it is difficult to quantify or even identify designers who give up their businesses, particularly for reasons of piracy, there is strong anecdotal evidence that design piracy is harmful to the U.S. fashion industry.”).

[63] Id. at 181.

[64] Id. at 85.

[65] Although little movement has been seen at the Congressional level since the 2011 hearing on the IDPPPA, the bill remains a widely discussed topic among fashion industry professionals and lawyers. The U.S. Chamber of Commerce did voice its support for the bill in October 2011 by sending a letter to the House Judiciary Committee calling for a full committee vote. See Kristi Ellis, Design Piracy Bill Picks Up Support, Women’s Wear Daily (Oct. 12, 2011), http://www.wwd.com/business-news/government-trade/design-piracy-bill-picks-up-support-5289381, but as of this writing, no vote has taken place.

[66] Arthur C. Danto, Encounters and Reflections 286-87 (1990).

[67] 2008 Hearing, supra note 9, at 27 (statement of Narciso Rodriguez).

[68] See, e.g., 2006 Hearing, supra note 9, at 78 (statement of Susan Scafidi).

[69] Kristi Ellis, Designers to Back Knock-off Bill, Women’s Wear Daily, July 15, 2011, at 2.

[70] Rosemary Feitelberg, Schumer Touts Plan to Fight Design Theft, Women’s Wear Daily, Aug. 9, 2007, at 12.

[71] The Copyright Act does not explicitly protect “works of art” but instead protects most visual art as a “pictorial, graphic, and sculptural works,” 17 U.S.C. § 102(a)(5), and extends further protection to “works of visual art” under VARA, 17 U.S.C. § 106A (2006).

[72] Kristi Ellis, Design Piracy Bill Advances to Senate, Women’s Wear Daily, Dec. 2, 2010, at 4 (quoting Kurt Courtney).

[73] 2006 Hearing, supra note 9, at 187.

[74] 2008 Hearing, supra note 9, at 27.

[75] 2006 Hearing, supra note 9, at 81.

[76] Id. at 84.

[77] It has been noted that the pop art craze of the early 1960s “caused the realms of art, fashion, and journalism to intersect as rarely before.” James Meyer, Minimalism: Art and Polemics in the Sixties 25 (2001). And in the 1960s, fashion magazines like Harper’s Bazaar and Vogue featured the work and writings of contemporary artists like Robert Morris, Dan Flavin, Donald Judd, Sol Lewitt, James Rosenquist, and Frank Stella alongside and interspersed with fashion description and photography. The inclusion of high art in glossy fashion magazines “equated the new art with fashion and vice versa …It brought the highbrow into congress with the middlebrow, blurring the distinction between those spheres; it lent the authority of fine art to design while conferring the glamour and publicity of fashion to fine art.” Id. at 29. This was perhaps more accurately a new beginning for the symbiosis of art and fashion, which had previously flourished in pre-war France with designers like Paul Poiret who were inspired by modern artists of the time. See Arnold, supra note 51, at 42.

[78] Yves Saint Laurent, Exhibition Brochure, Petit Palais, Musée des Beaux-Arts de la Ville de Paris, at 6 (2010), available at http://www.petitpalais.paris.fr/sites/default/files/DP_YSL_English_0.pdf.

[79] See Arnold, supra note 51, at 12.

[80] See, e.g., Amy de la Haye, The Cutting Edge: 50 Years of British Fashion 13 (1997) (“The high-fashion industry as we know it today, with seasonally presented, designer-led fashions was established in Second Empire Paris (1852-70).”).

[81] See Arnold, supra note 51, at 12.

[82] de la Haye, supra note 80, at 13 (“Worth conceived and imposed his own design ideas and in so doing created fashion unequivocally determined by the designer.”).

[83] Id.

[84] Arnold, supra note 51, at 6.

[85] Id. at 10 (quoting Ernestine Carter).

[86] Id. (“Chanel designed herself, and then sold this image to the world.”). This technique has been used with similar success by designers like Donna Karan, Donatella Versace, and more recently Margherita Missoni. But the image of the designer remains incredibly important even when he is not selling a vision of himself. For example Karl Lagerfeld who designs for Chanel today does not epitomize the Chanel customer but instead uses his personal style to “denote[] his status as a cultured aesthete” and remains involved in art and cultural projects which support the elite status of his couture. Id. at 11.

[87] Id. at 21.

[88] See, e.g., id. at 17 (“Fashion houses, partly to raise the status of the designer, and partly to provide a recognizable identity and personality to promote each label, asserted the idea of the couturier as an innovator and artist.”).

[89] Ingrid Sischy and Germano Celant, Editorial, Artforum, Feb. 1982, 34.

[90] See infra notes 134-141 and accompanying text.

[91] See Yves Saint Laurent: “Mondrian” day dress (C.I.69.23), Heilbrunn Timeline of Art History, The Metropolitan Museum of Art, http://www.metmuseum.org/toah/works-of-art/C.I.69.23 (last visited Aug. 16, 2012). It is interesting to note that the Metropolitan credits both Mondrian and Saint Laurent as being the “artist” of this piece in their index. Although Mondrian did not live to see Saint Laurent’s creation, one can imagine that he would have approved: “The essence of Mondrian’s ideas is that painting, composed of the most fundamental aspects of line and colour, must set an example to the other arts for achieving a society in which art as such has no place but belongs instead to the total realization of ‘beauty’.” Introduction, Piet Mondrian, The Collection, Museum of Modern Art, http://www.moma.org/collection/artist.php?artist_id=4057 (last visited Aug. 16, 2012).

[92] After Saint Laurent died, his partner Pierre Bergé put their art collection, which included works by Picasso, Matisse, Duchamp, Brancusi, Mondrian, and de Chirico up for auction at Christie’s in Paris. See Steven Erlanger, Saint Laurent Art Sale Brings In $264 Million, N.Y. Times, Feb. 24, 2009, at A8, available at http://www.nytimes.com/2009/02/24/arts/design/24auction.html.

[93] Yves Saint Laurent: “Mondrian” day dress, supra note 91. See also Barbara Pollack, All Dressed Up, ARTnews, Feb. 2012, at 88. As for art’s reclaiming of the designs, an Irving Penn photograph of one of the Braque inspired 1988 dresses recently sold at contemporary art auction house Phillips de Pury for $27,500, $9,500 over the high estimate. Lot 39, Irving Penn, Saint Laurent, Braque Inspired Fashion, Paris 1988, Photographs Auction, New York, April 9, 2011, http://www.phillipsdepury.com/auctions/lot-detail.aspx?sn=NY040111&search=&p=4&order=1&lotnum=39.

[94] Yves Saint Laurent, supra note 78, at 13.

[95] See Jack Bankowsky, © Murakami, Artforum, Dec. 2007, at 334.

[96] See Press Release, Brooklyn Museum, The Brooklyn Museum Announces the Inclusion of an Exclusive Louis Vuitton Store Within the Retrospective of Japanese Artist Takashi Murakami (Mar. 21, 2008), available at http://www.brooklynmuseum.org/press/uploads/
Louis%20Vuitton%20Press%20Release-PROD.pdf.

[97] See Fashion Scoops, Early to the Party, Women’s Wear Daily, Jan. 10, 2008, at 13.

[98] See, e.g., Francisco Costa, Foreword to Elyssa Dimant, Minimalism and Fashion: Reduction in the Postmodern Era, at 9 (2010) (“I often look to film, sculpture, photography, and architecture for inspiration and have found it in the unpretentious works of artists such as Brancusi, Madame Vionnet, Frank Stella, Man Ray, and John Pawson-my minimalist predecessors.”).

[99] Elyssa Dimant, Minimalism and Fashion: Reduction in the Postmodern Era 31 (2010) (discussing Donald Judd’s expositions on minimalism in “Specific Objects”).

[100] Id. at 32 (describing Balenciaga’s creation of “clothing that was neither bolstered by a corset infrastructure nor adherent to the human body’s natural shape”)

[101] Valerie Steele, Fifty Years of Fashion: New Look to Now 41 (1997).

[102] Id. at 41-42.

[103] Id. at 75. Dimant also singles out Chanel as a forerunner of minimalism:

Chanel’s easily adaptable components are the sartorial counterparts of minimal art’s primary shapes: basic building blocks that appealed intrinsically to a larger audience than the one drawn to overly ornate designs…Of all Chanel’s innovations, her little back dress would emerge as a conceptual ready-made that conveyed discreet, refined chic no matter the price tag…The little black dress is a standard and an original, a design that can be reinterpreted by nearly any designer or manufacturer and still retain its inherent value as the champion of progressive fashionable dressing. With regard to the minimalist discourse, this ready-made speaks to the major criticism of minimalism itself: in its simplicity, accessibility, and translation to mass production, is the minimal object enough “art”?

Id. at 54-55.

[104] See, e.g., Diana Vreeland at the Costume Institute, Diana Vreeland, http://dianavreeland.com/page/posts/op/read/id/73 (last visited Aug. 16, 2012).

[105] Diane Cardwell, Waiting Hours to See the McQueen Exhibit, in a Line Not Unlike a Runaway, N.Y. Times, Aug. 8, 2011, at A14, available at http://www.nytimes.com/2011/08/08/nyregion/alexander-mcqueen-exhibition-at-metropolitan-museum-of-art-draws-thousands.html.

[106] Arnold, supra note 51, at 5-6 (“Curatorial study of fashion has produced numerous important exhibitions and the vast number of visitors who attend such displays testify to the widespread interest in fashion. Importantly, exhibitions provide an easily accessible connection between curators’ specialist knowledge, current academic ideas and the central core of fashion, the garments themselves, and the images that help to create our ideas of what fashion is.”).

[107] Reka C.V. Buckley and Stephen Gundle, Flash Trash: Gianni Versace and the Theory and Practice of Glamour, in Fashion Cultures: Theories, Explorations and Analysis 331, 339 (Stella Bruzzi & Pamela Church Gibson, eds., 2000) (“[Runway shows] evolved from restricted events aimed at the fashion press, buyers and selected clients into show business events which captured newspaper headlines, generated magazine coverage and therefore impacted on popular culture. In every aspect they were conceived and choreographed to attract attention.”).

[108] See Jess Cartner-Morley, Chanel goes underwater to unveil latest collection, The Guardian, Oct. 4, 2011, at 26, available at http://www.guardian.co.uk/fashion/2011/oct/04/chanel-lagerfeld-pearl-collection.

[109] David Velasco, Alexander McQueen: Savage Beauty, Artforum, May 2011, at 134.

[110] Dimant, supra note 99, at 81.

[111] See, e.g., Michael Bracewell, Yoko Ono, Frieze, Nov.11, 2003, available at http://www.frieze.com/issue/review/yoko_ono1.

[112] Luisa Zargani, Salvatore Ferragamo to Sponsor Da Vinci Exhibit, Women’s Wear Daily, Feb. 28, 2012, 11. Other designers, including Marc Jacobs for Louis Vuitton, have held shows in the Louvre’s courtyard.

[113] See Ann Binlot, It’s a Model Invasion! Inside Fashion Week’s Full-Blown Takeover of NYC’s Galleries and Museums, ArtInfo (Sept. 7, 2011), http://www.artinfo.com/news/story/38530/its-a-model-invasion-inside-fashion-weeks-full-blown-takeover-of-nycs-galleries-and-museums/ (quoting Chelsea Art Museum special events manager Melissa Netecke: “I know that many of the galleries-both commercial and nonprofit-host fashion events because fashion, as an art form, falls along the lines of their mission or interests.”).

[114] Allan Kaprow, The Artist as a Man of the World (1964), reprinted in Essays on the Blurring of Art and Life 46, 47 (Jeff Kelley ed., 1993).

[115] Warhol, supra note 1, at 92; see also Amy M. Adler, Against Moral Rights, 97 Cal. L. Rev. 263, 297-98 (2009) (pointing out that in the recent collaborations between contemporary artists and fashion designers, “[o]f course, Warhol’s spirit reigns over this merger of retail and art.”).

[116] In describing the constraints of commerciality, Yves Saint Laurent noted, “I am bursting with the desire to go much further and revolutionize everything. Then I think: it would be perfect for the Saint-Germain-des-Pr’s boutique at, say, $100…but at couture prices will they accept it?” Steele, supra note 101, at 65. But one could easily argue that with a fashion industry today so reliant on brand licensing for profits, designers of couture and runway designs have freedom to create without worrying about the saleability of their designs.

[117] Dimant, supra note 99, at 57 (describing the work of Claes Oldenburg who sold painted plaster reliefs (many of shoes and other types of clothing) at his Lower East Side outpost “The Store,” and was criticized at the time for blurring distinctions between art and commerce.)

[118] Id.

[119] Samantha Vettese Forster, Connections Between Modern and Postmodern Art and Fashion, 12 Design J. 217, 228 (2009) (“The ‘sellability’ of a Postmodern art work can now be a factor in its inclusion in the elected ‘art timeline’ – what will be recorded in history as ‘good art’ or an important movement. Some Postmodern artists now produce works with definite commercial considerations and gear their work to particular buyers and segmented sections of society, as with fashion, and dealers and galleries often use equivalent artifices to fashion marketing.”). See also Adler, supra note 115, at 297 & n.204 (noting that “young artists seem to embrace commercialism in a casual way that previous generations would have considered heresy” and “the increasing absurdity of trying to separate art from commerce”).

[120] See Adler, supra note 115, at 298 (“As art increasingly functions like other luxury commodities, this shift undermines the notion that art is distinct from other products.”).

[121] Damien Hirst & Gordon Burn, On the Way to Work 90 (2001). This is not a particularly contemporary practice but continues a long tradition of the use of found and mass-produced objects going back to the early 20th century Dadaists. Marcel Duchamp began the practice of elevating the found object to the status of art with his “ready-mades,” and minimalist artists such as Donald Judd, Carl Andre, Sol le Witt and others had their sculptures manufactured by factories, a process imitated by Warhol in his “Factory.” Dan Flavin’s work using store-bought light bulbs and florescent tubes, though minimalist, also associated him with the “found object” and “junk” tradition associated with Robert Rauschenberg, Jasper Johns, and Claes Oldenburg among others. See Dimant, supra note 99, at 57.

[122] I’ll Be Your Mirror: The Selected Andy Warhol Interviews 99 (Kenneth Goldsmith, ed. 2004).

[123] Buckley & Gundle, supra note 107, at 341.

[124] Dimant, supra note 99, at 61-62.

[125] Brief for Plaintiff-Appellee at 20, Cariou v. Prince, No. 11-1197 (2d Cir. Jan. 25, 2012).

[126] Forster, supra note 119, at 234.

[127] Adler, supra note 115, at 299. Professor Adler does qualify this potentially sweeping statement by noting:

Or at least, to have come close to destroying it. Adorno wrote that “art revolts against its essential concepts while at the same time being inconceivable without them.” Has the contemporary revolt against the category of art been so successful that it has destroyed art’s “essential concepts”? Has contemporary art turned “art” into a category that is “inconceivable”?

Id. at n.218 (internal citation omitted).

[128] See id. at 298-99 (“I believe that art has been (almost) successful in destroying the line separating art from everything else. In an ultimate act of iconoclasm, the great achievement of contemporary art, has been to destroy the category of art as we know it.”).

[129] See, e.g., Arnold, supra note 51, at 33-34:

In [some fashion] designs and presentations, artistic methods are used to comment on the practice of fashion, but this does not necessarily turn their fashion into art…Like other design forms, such as architecture, fashion has its own particular concerns that prevent it from ever being purely art, craft, or industrial design… In fashion’s case, focus on body and cloth, and the fact that it is, usually, designed to be worn and sold, distinguishes it from fine art. However, this does not prevent fashion from being meaningful, and the art world’s continued fascination with fashion underlies its cultural significance.

[130] Kristi Ellis, Copyrighting a Dress: Congress Mulling Bill to Protect Designers, Women’s Wear Daily, Apr. 26, 2007, at 13.

[131] See, supra Part II. See also Forster, supra note 119, at 239:

Art and fashion may have crossed over through coincidence but most often, throughout the 20th century, it has been because of mutual aesthetic and ideological affinities. These affinities may be because of an underlying similarity between the artist and designer or because of an actual collaboration that has occurred. Artists can appropriate the stereotypically held notions of business success and glamour from fashion and fashion has often taken the sentiments of profundity and innovation believed of art. They have both benefited from the alliance in some way.

[132] See supra Part I.

[133] The Paris Act of the Berne Convention, Article 6bis defines moral rights as existing “[i]ndependently of the author’s economic rights” and protecting against certain acts that “would be prejudicial to [the author’s] honor or reputation.” S. Treaty Doc. No. 27, 99th Cong., 2d Sess. 37 (1986). There is also often said to be a general public interest in protecting moral rights of artists. See, e.g., Merryman, supra note 37, at 1029 (a work should be “protected and kept as it emerged from the imagination of its author and later conveyed to posterity without damage”) (quoting Millet, Tribunal de la Seine, May 20, 1911, Amm. I. 271).

[134] See, e.g.,, Linda J. Lacey, Of Bread and Roses and Copyrights, 1989 Duke L. J. 1532, 1542 (1989).

[135] Id.

[136] Id. See also California Art Preservation Act, Cal. Civ. Code § 987(a) (West 2012) (“the physical alteration or destruction of fine art, which is an expression of the artist’s personality, is detrimental to the artist’s reputation”).

[137] See Roberta Rosenthal Kwall, The Soul of Creativity: Forging a Moral Rights Law for the United States 5 (2010) [hereinafter Kwall, Soul of Creativity]:

[T]here are practical benefits to designing a legal system of authors’ rights that promote authorship morality….”[T]he law can have an important symbolic function if it accords with public views about what is fair, but it loses that power as the formal law diverges from public morality.”…In the context of intellectual property laws specifically, [people should] “believe that the rules established serve reasonable social purposes and are not simply efforts to create profits for special interest groups, such as large corporations.

(quoting Tom R. Tyler, Compliance with Intellectual Property Laws: A Psychological Perspective, 29 N.Y.U. J. Int’l L. & Pol. 219, 225-26 (1997)).

[138] Lacey, supra note 134, at 1537. See also Kwall, Soul of Creativity, supra note 137, at xiii (“The act of creative authorship implicates the honor, dignity, and artistic spirit of the author in a fundamentally personal way, embodying the author’s intrinsic dimension of creativity.”).

[139] VARA, 17 U.S.C. § 106A (2006).

[140] Id. § 106A (a)(1)(A).

[141] Id. § 106A (a)(3)(A).

[142] See, e.g., California Art Preservation Act, Cal. Civ. Code § 987 (West 2012); N.Y. Arts & Cult. Aff. Law § 14.03 (McKinney 2012).

[143] Roberta Rosenthal Kwall, Inspiration and Innovation: The Intrinsic Dimension of the Artistic Soul, 81 Notre Dame L. Rev. 1945, 1976 (2006) [hereinafter Kwall, Inspiration] (citing Immanuel Kant, The Philosophy of Law 64 (W. Hastie trans., T. & T. Clark 1887)).

[144] See Lacey, supra note 134, at 1542 (stating that artistic works are “part of an artist’s very identity”).

[145] 2008 Hearing, supra note 9, at 22.

[146] Id. Mr. Rodriguez likely did not see this work as having been “stolen” because its value to him was emotional and not economic and thus could not be stolen.

[147] The observation that many artists, authors, and other creators are motivated largely by non-economic sources and would continue to create without any economic incentive has formed the basis of most scholarship advocating the adoption of more expansive moral rights laws in the U.S. See Kwall, Inspiration, supra note 143; Kwall, Soul of Creativity, supra note 137; Lacey, supra note 134.

[148] Kwall, Soul of Creativity, supra note 137, at xiii.

[149] 2008 Hearing, supra note 9, at 54.

[150] 2006 Hearing, supra note 9, at 79 (statement of Susan Scafidi).

[151] See, e.g., Kwall, Soul of Creativity, supra note 137.

[152] 2006 Hearing, supra note 9, at 189.

[153] Another common argument advanced by proponents of increased protection is that the U.S. should attempt to conform to the design protection regimes of Europe in order to successfully compete in the global marketplace. See, e.g., 2006 Hearing, supra note 9, at 84 (statement of Susan Scafidi) (arguing that the French recognition of intellectual property rights in fashion design has “helped maintain the preeminence of the French fashion industry” also that the French see fashion as art). A detailed analysis of that argument is beyond the scope of this Note, but it is worth noting that many European design protections flow from Franco-German personality-based theories of intellectual property. See Kwall, Inspiration, supra note 143, at 1976.

[154] Many legal scholars have argued that natural law and personhood theories that are offered to justify moral rights laws should be incorporated into copyright law, but as it stands, most academics and courts continue to endorse the economic view. See, e.g., Kwall, Inspiration, supra note 143, at 1947 (“[T]he law can, and should, be shaped in response to all relevant forces motivating creativity, not just those concerned with economic reward.”).