Copyright originally only applied to printed works, and though it has been extended to sound recordings, movies, and software, its protections have never yet covered fashion design. Copyright in the American tradition provides an incentive to encourage the creation of new works, with the goal of benefitting everyone by increasing the amount of creative works. Despite this lack of statutory incentive, the fashion industry has never lacked for creativity–but nonetheless, some still think fashion needs protection in order to be innovative:

On Aug. 5, Sen. Charles E. Schumer (D-N.Y.) introduced S.3728: The Innovative Design Protection and Piracy Prevention Act. He’s got 10 co-sponsors — including three Republicans — and a big idea: to extend copyright protections to the fashion industry, where none currently exist. That’s right: none. I — well, not I, but someone who can sew — can copy Vera Wang’s (extremely expensive) dress and sell it to you right now (for much less), and Wang can’t do a thing about it.

via In copycats vs. copyright, the knock-off wins from the Washington Post.

So if Sen. Schumer has to introduce a law to protect the fashion industry from fakes, how come knock-offs are already seized by police? The answer is that even though copyright doesn’t protect fashion, trademark does. Copyright gives a medium-term monopoly to creators, while provides much more limited protection–but lasts as long as the brand protects and uses its mark.

In short, it’s perfectly OK to copy a high-end purse, as long as you don’t copy the logo and brand of the designer. Copy all you want, but don’t pretend your copy is the real thing. The point of this–as with trademark generally–is to avoid confusing or misleading customers. From the business side, the point is to keep poor imitations from cheapening the investment in the brand.

Of course, it’s not always clear what’s merely a copy vs. what’s actually counterfeit, but that’s why we have lawyers!

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• The Many Ways In Which Fashion Copyrights Will Harm The Fashion Industry (techdirt.com)
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Apple’s “app store” continues to generate controversy through its rejections. I must agree with the following analysis that use of icons–especially as provided through an API expressly for that purpose should not violate trademark law (or copyright for that matter).

It is, I think, rather like using “Xerox” or “Coca-Cola” to specifically identify those products–since the whole basis of trademark is to essentially avoid consumer confusion, this usage is not a violation.

The only other potential problem would be too suggest that the trademark is being used to suggest endorsement–also not an issue here, I think, but perhaps more possible.

Here’s the situation: Airfoil is using icons made available through Apple’s API to identify the source of a transmission. Apple rejected the app, saying that it’s display of Apple logos (via the Apple-provided API) violated IP laws.

Airfoil Speakers Touch’s display of these icons falls under fair use. If there’s any doubt to this, look at all the places where Apple displays other people’s icons without their explicit consent, like the Finder, the Dock, Spotlight, etc.

Daring Fireball also has a good, in-depth discussion of various arguments put forth, including a look at just what the iPhone SDK agreement says.

Ultimately, this is not a trademark issue, but simply a matter of Apple enforcing arbitrary and inconsistent requirements for iPhone applications. There’s no legal requirement for them to forbid use of their icons, and no benefit to them in doing so. By insisting on not allowing us to display their icons, Apple is simply wasting everybody’s time, including their own, and inconveniencing our mutual users.

via Under The Microscope.

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The Uneasy Case for Intellectual Property Rights in Traditional Knowledge by Stephen Munzer, Kal Raustiala:

Should traditional knowledge—the understanding or skill possessed by indigenous peoples pertaining to their culture and folklore and their use of native plants for medicinal purposes—receive protection as intellectual property? This Article examines nine major arguments from the moral, political and legal philosophy of property for intellectual property rights and contends that, as applied to traditional knowledge (TK), they justify at most a modest package of rights under domestic and international law. The arguments involve desert based on labor; firstness; stewardship; stability; moral right of the community; incentives to innovate; incentives to commercialize; unjust enrichment, misappropriation and restitution; and infringement and dilution. These arguments do, however, support “defensive” protection for TK: that is, halting the use of TK by nonindigenous actors in obtaining patents and copyrights. These arguments also support the dissemination of TK on the internet and via other digital media and the selective use of trademarks. The force of these conclusions resides in the importance of a vibrant public domain, and the absence of any plausible limiting principle that would allow more robust rights in TK for indigenous groups without permitting equally robust rights for nonindigenous groups.

I discovered this useful and interesting discussion of the relationship between intellectual property and traditional knowledge thanks to a pointer from Lawrence Solum at the Legal Theory Blog. As he notes there, this has often been a quite confusing area of the law, and this article does a good job of going through the issues in an understandable and useful way. Recommended reading.

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Bad Results for Google in Recent 2nd Circuit Ruling Over Keywords — Law Blog — WSJ:

In an opinion penned by Judge Pierre Leval, a three-judge panel ruled that Google must face a trademark infringement lawsuit for selling keywords that trigger ads. Click here for the Recorder story.

An interesting development. Basically, Google was selling the names of companies to competitor companies as keywords for advertising. The 2nd Circuit did not necessarily say that was not acceptable, just that it did not fall into the “internal use” exemption for infringement and sending it back to the district court for further proceedings based on that.