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"Useful" things can’t be protected by copyright

Clothing designs and cooking recipes can’t be copyrighted. They’re creative expressions (some more than others). They’re fixed in a tangible form. But there’s a 200-year-old rule that things that are “useful” can’t be regulated. At least, that’s what the New York Times says in their article “OK, Knockoffs, This is War,” which ran on March 30th. I haven’t found any original expression of this “legal principle” yet, but the NYT calls it “outdated in this era of sophisticated mass copying.” They go on to quote a lawyer:

”The whole underpinning of that 200-year-old law of functionality was to promote creativity and innovation,” said Alain Coblence, a lawyer hired by the Council of Fashion Designers and by fashion trade groups in Paris and Milan, which also promote the legislation. ”Yet the situation is exactly the reverse because designers now must ask what is the incentive to innovate if you know your creation is going to be stolen within days and your designs are going to be used before you have a chance to use them for yourself?”

Now, I’m by no means an expert on copyright law, or law of any kind, but I fail to see how this law is “outdated” just because it allows copying. After all, rich people will always buy designer originals rather than knockoffs, and regular people will never buy designer originals. I’m also having trouble imagining what we regular folks would be able to buy once all the clothing designs out there have been copyrighted with rights reserved for a “limited” time of only 120 years. (I’m using the current term length for unpublished works because I don’t know exactly how you would “publish” a dress or a coat.) How will this encourage innovation? I think it would innovate us right out of clothing!

There seem to be two main arguments for increased regulation: copying isn’t “fair,” and “people now have more disposable income” so they can afford the originals. The second reason needs no comment. The first sounds wonderful and all, except that my understanding of copyright law is that it has very little to do with fairness. Plagiarism isn’t “fair,” but unless it violates copyright law it isn’t actually illegal. And from my limited knowledge of fashion knockoffs, they get most of their fame from “citing” the original source. After all, those Oscar dress knockoffs wouldn’t sell very well if they weren’t copies of dresses worn at the Oscars.

Luckily, the NYT seems to be on my side. Author Eric Wilson ends with a quote from Gela Taylor, a designer at Juicy Couture talking about the proposed regulation.
”I don’t think anybody’s naive about this,” Ms. Taylor said. ”Fashion is a strange and ephemeral thing. But this proposal is for people who are not inspired by anything but looking for an easy way to make money.”

Now my question is, isn’t scholarship “useful”?

Published inCopyright