Note: Haute off the Press: Refashioning Copyright Law To Protect American Fashion Designs from the Economic Threat of 3D Printing

By Anna M. Luczkow. Full text here.

Though invented in the early 1980s, three-dimensional (3D) printing recently became a topic of discussion when advancements in the field revealed the technology’s ability to transform industries and revolutionize consumer capabilities. In the past few years, society witnessed everything from 3D-printed prosthetic limbs to children’s toys. While many scholars deliberate the technology’s potential impact on intellectual property (IP)-protected fields, others wonder what will become of the fashion industry.

Fashion is traditionally unprotected subject matter under American IP law. Scholars have argued for years that fashion is properly the subject of the Copyright Act, but have failed to overcome the barrier to copyright protection created by clothing’s categorization as being “utilitarian.” Despite fashion professionals and politicians introducing over seventy bills to Congress, fashion continues to exist in an unprotected state. Many opponents to copyright coverage continue to cite the same rationales––exemplified by an argument known as the “piracy paradox”––for why unprotected fashion is ideal for the industry. 3D printing presents a wholly new issue by allowing third-party users to potentially gain protection in 3D files depicting designers’ work. This Note addresses the ways in which this aspect of 3D printing destroys the relied-upon economic rationales and warrants a different theoretical basis for evaluating fashion design for IP protection.

This Note supplies a new rationale for evaluating fashion design for copyright protection. Under the rationale proposed, fashion is not categorically barred as functional but evaluated along a spectrum in light of several factors aimed at gauging the originality of a particular design. These factors include the purpose of an article of clothing, the piece’s cultural significance and meaning within the fashion community, and the aggregate economic impact of denying protection to the piece. Under the solution offered, each piece is presumed protected, and is evaluated on a case-by-case basis when challenged in court. Until such a solution is adopted, however, this Note also supplies designers with a concrete solution they can implement themselves. This Note proposes a platform similar to music downloading and streaming services, in which designers make available files of their designs to be 3D printed by users. This Note argues that, by doing so, designers may receive protection in the files depicting their work, thus gaining greater control over, and profiting financially from, the dissemination of these files.