A Study on the Legal Protection of Fashion Design: Comparison between Korea and the United States

The global fashion industry produces a huge variety of creative goods to market. The fashion industry profits by developing creative content as in the music, film, video game, and book industries. However, unlike those industries, the fashion industry’s principal creative production lies outside the domain of intellectual property law. Fashion has not been historically protected by copyright law due to differences in the legal treatment of the fine arts, like literature, music, and art, which are accorded copyright protection, and crafts, which are generally not accorded such protection. Although fashion is meant to be functional (i.e., it must fit the human body and keep it warm and dry), it is also artistic and creative. Most would agree that fashion is rarely a fine art because it also fulfills a utilitarian function, but this should not necessarily preclude designers from being able to protect their investment in truly innovative designs, as artists and musicians are able to do. The law has traditionally treated each field of IP as an instance of discrete and mutually exclusive protection. Patents protect innovation in terms of functional design, while copyrights protect artistic expression. Finally, trademarks protect goodwill and reputation. These firm divisions between patentable and copyrightable subject matter have left the creative designers of utilitarian objects such as clothing without protection. The growth of the fashion industry has spawned an increased public awareness about fashionable designer products. In light of the popularity of certain designers or specific designs, design piracy has increased exponentially. Design piracy is the copying of a designer’s original designs, thereby enjoying the benefit of his/her artistic work at no expense. Copyists can thus free ride on the efforts of designers, thereby discouraging future investments in creative fashion design. Design piracy is not new; however, while it once took several years for a fashion to descend the price line into low-priced production, this progression is now nearly immediate. Technological advances have made it possible for design pirates to obtain another creator’s designs and manufacture duplicates overnight. Because of the pervasiveness of design piracy, the practice of copying is now considered commonplace in the fashion industry. Accordingly, the original designers of iconic fashion pieces stand to lose substantial amounts of revenue after expending the capital necessary to create them. This study compares Korea and the United States to understand the implications of Korea’s fashion design protections. This paper describes the research on fashion design protection practices in both countries, analyzes the present situation state of fashion design protection in these countries, and compares their legal principles related to fashion design protection. To this end, a literature review is presented that draws on relevant studies and national statistical data on both countries. First, the research on Korea and U.S. fashion design piracy can be summarized as follows. For fashion design in Korea, previous studies focus on the current status of counterfeit fashion goods, intellectual property protection in the fashion market and the protection of applied arts including fashion design. However, these studies have some limitations; many lack specific, concrete discussion on the current status of intellectual property and protection methods, instead providing general, comprehensive discussions. In contrast, studies in the U.S. context focus on the present situation of counterfeit goods in the fashion market, the nature of the fashion market, the essential features of design piracy and the legal protection of fashion design under the Design Piracy Prohibition Act. The breadth of studies on U.S. design piracy studies is much wider compared to those on Korea. In particular, as bills regarding the protection of design under copyright law such as DPPA or IDPPA are submitted to Congress, studies on the protection of design under legal laws are actively conducted. Fashion design protection in Korea versus the United States and the relevant legal principles can be summarized as follows. There are similarities and differences in the protection of fashion design across both countries. First, both countries are similar in terms of fashion design protection under patent law. Both countries provide some protection for fashion design under copyright law. Fashion design still lacks the criteria that have been established for literary works, but criteria are being developed to facilitate the protection of fashion design under copyright law. The most significant difference between the two countries regarding the protection of fashion design lies in the political efforts undertaken to protect fashion design. Unlike Korea, the United States has continued to enforce a separate law for the practical protection of fashion design to address two problems: first, the screening process generally takes a long time, which hinders the protection of fashion, and second, it is difficult to protect the middle area of design rights.