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Couture on Campus

Thanks to the Georgetown University Law Center faculty for engaging my "Counterfeit Chic" presentation at a faculty research workshop today.  Fashion and intellectual property is still an unusual subject for a law school, but both hospitality and interesting questions were in abundance.

I'll keep you updated on the progress of the research, but for the moment I'll just share with you my Valentine's Day ornament, Tobias Wong's "Ballistic Rose" pin, made of heavy duty ballistic nylon (aka Kevlar, a registered trademark of DuPont).  Certainly an interesting commentary on modern romance!

Tobias Wong's Ballistic Rose

The question is, would the pin be subject to copyright? 

Ordinarily, a functional item cannot be copyrighted -- hence fashion's usual dilemma.  If we simply unglued the metal pin from the back of the rose, or replaced the pin with a hook and hung it on the wall, however, we'd have an art object that would be subject to copyright protection.  So the design part of the brooch that is "separable" from its function -- pretty much all of it, save the metal pin -- is subject to copyright.  Strange?  Yes, but the rules about functionality and separability lead to some tortured results.

There is a separate question re: to what extent copyright protects this design, given that it's fairly literal and that making rosettes from fabric is not unusual, but the use of ballistic nylon is an original expression.  So my verdict is for at least some copyright protection, with congratulations to the artist. 

Happy Valentine's Day -- and here's hoping that your roses don't need to be bulletproof!

P.S. Props to the Cooper-Hewitt National Design Museum in New York, where I found the pin during the "Extreme Textiles" exhibition.  An institution dedicated to the display of historic and contemporary design is certainly worth a visit, even if they don't have an online museum store! 


As we become an increasingly image-driven, telegenic-obsessed society, it only seems like more and more money & resources will be pouring into the world of fashion - which no doubt means more potential lawsuits.

Which makes me wonder about the "functionality" part of fashion - it would appear that the "function" part of fashion is decreasing in value, while "design" is becoming more valued: for the status it conveys on the wearer, the status it transmits to the viewer, etc. And as legal rules change to reflect this change in economic value, it would seem that creations like the brooch would automatically be copyright protected without question.

It seems ironic that this shift in value - away from emphasis on "function" & in favor of "design" - is occuring just as so many more consumers are jumping into the fashion game for two reasons: 1. Increased access to fashion info and knowledge from fashion TV & cable shows, the internet, blogs & sites like Style.com - and increasinly less need to rely on traditional arbiters of taste like print magazines. 2. Greater economic resources such as the economic gains of large segments of Chinese & Indian society. Fashion is an expensive game to play properly, and more people now have the resources to do it, which creates an opposing trend - decreasing the value of upholding copyright protection on items like the Wong rose brooch.

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