Last weekend I was in Oak Park (outside Chicago) for the annual Frank Lloyd Wright house tour. Few people rise to the level of genius in my eyes, but Wright is one who does. What he accomplished also raises an important issue in IP law that I’d like to talk about.
In 1990, Congress passed the Architectural Works Copyright Protection Act. Before this, buildings were not copyrightable because they were functional. This meant that anyone who took a picture of a building (like mine of Fallingwater) or produced an artistic work that used the image of a building exterior could do so freely. The only exceptions were that: (1) building interiors are controlled by the property owner (based on trespass); and (2) there might be circumstances where an exterior could be a trademark. Congress evidently concluded in 1990 that giving architects a copyright in their building exteriors was a good idea.
The Architectural Works Copyright Protection Act exemplifies everything that is wrong with IP law. There was no evidence in 1990 that innovation in architecture needed a boost, nor is there any indication that the extension of copyright law to buildings improved architecture. This reflects a broader problem that cuts across many IP debates (on business method patents, the lengthening of copyright terms, the enactment of a federal trademark dilution remedy), which is the assumption that more IP protection is always good. Clearly, there are some situations in which this is true, but advocates of robust IP rights sometimes use this as a mantra no different from those who say that cutting taxes is always good.
The Architecture Act served only to redistribute income — albeit a limited amount — from the public domain to architects. Now one can have a valid distributional debate about who ought to get this pot of money. But don’t kid yourself — that’s all that’s going on.
Why am I bringing this up? Because the Architecture Act is now being cited as a precedent for extending copyright protection to fashion designs, which are also not generally copyrightable because of their functionality. Fashion designers have been asking for this since the 1930s, but a renewed push for this may be gaining traction in Congress.
Is there any indication that innovation in fashion is suffering? Not that I know of. There is a thought that European countries protect designs more than we do, but there is a simple answer to that — import their designs and products. In this sense, design protection often serves as code for protectionism because it’s a way of aiding domestic producers at the expense of consumers.
In the end, the argument for fashion design protection comes down to the argument that consumers should transfer some of their surplus to designers. If there were a benefit to this (in the form or more or better fashion), then that might be justifiable. Without evidence for that proposition, though, all you have is a fashion tax that redistributes wealth. It’s a bad idea that should be rejected.