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 creativegoods to market. The fashion industry profits by developingcreative content as in the music, film, video game, andbook industries. However, unlike those industries, the fashionindustry's principal creative production lies outside the domainof intellectual property law. Fashion has not been historicallyprotected by copyright law due to differences in the legaltreatment of the fine arts, like literature, music, and art, whichare accorded copyright protection, and crafts, which are generallynot accorded such protection. Although fashion is meant to be functional (i.e., it must fitthe human body and keep it warm and dry), it is also artisticand creative. Most would agree that fashion is rarely a fine artbecause it also fulfills a utilitarian function, but this should notnecessarily preclude designers from being able to protect theirinvestment in truly innovative designs, as artists and musiciansare able to do. The law has traditionally treated each field ofIP as an instance of discrete and mutually exclusive protection. Patents protect innovation in terms of functional design, whilecopyrights protect artistic expression. Finally, trademarks protectgoodwill and reputation. These firm divisions between patentableand copyrightable subject matter have left the creative designersof utilitarian objects such as clothing withoutprotection. The growth of the fashion industry has spawned an increasedpublic awareness about fashionable designer products. In light of the popularity of certain designers or specific designs,design piracy has increased exponentially. Design piracyis the copying of a designer’s original designs, thereby enjoyingthe benefit of his/her artistic work at no expense. Copyistscan thus free ride on the efforts of designers, thereby discouragingfuture investments in creative fashion design. Designpiracy is not new; however, while it once took several yearsfor 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 piratesto obtain another creator’s designs and manufacture dupli-cates overnight. Because of the pervasiveness of design piracy,the practice of copying is now considered commonplace in thefashion industry. Accordingly, the original designers of iconicfashion pieces stand to lose substantial amounts of revenue afterexpending the capital necessary to create them. This study compares Korea and the United States to understandthe implications of Korea’s fashion design protections. This paper describes the research on fashion design protectionpractices in both countries, analyzes the present situation stateof fashion design protection in these countries, and comparestheir legal principles related to fashion design protection. Tothis end, a literature review is presented that draws on relevantstudies and national statistical data on both countries. First, the research on Korea and U.S. fashion design piracycan be summarized as follows. For fashion design in Korea,previous studies focus on the current status of counterfeit fashiongoods, intellectual property protection in the fashion marketand the protection of applied arts including fashion design. However, these studies have some limitations; many lack specific,concrete discussion on the current status of intellectualproperty and protection methods, instead providing general,comprehensive discussions. In contrast, studies in the U.S. contextfocus on the present situation of counterfeit goods in thefashion market, the nature of the fashion market, the essentialfeatures of design piracy and the legal protection of fashiondesign under the Design Piracy Prohibition Act. The breadthof studies on U.S. design piracy studies is much wider comparedto those on Korea. In particular, as bills regarding theprotection of design under copyright law such as DPPA orIDPPA are submitted to Congress, studies on the protection ofdesign under legal laws are actively conducted. Fashion design protection in Korea versus the United Statesand the relevant legal principles can be summarized as follows. There are similarities and differences in the protection of fashiondesign across both countries. First, both countries are similarin terms of fashion design protection under patent law. Both countries provide some protection for fashion design undercopyright law. Fashion design still lacks the criteria thathave been established for literary works, but criteria are beingdeveloped to facilitate the protection of fashion design undercopyright law. The most significant difference between the twocountries regarding the protection of fashion design lies in thepolitical efforts undertaken to protect fashion design. UnlikeKorea, the United States has continued to enforce a separatelaw for the practical protection of fashion design to addresstwo 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.