Professor Susan Scafidi, director and founder of the Fashion Law Institute, was quoted in a Time Magazine article discussing the co-option of small designers’ art by brands and corporations.
In a now-viral video posted on May 21, 22-year-old designer Cecilia Monge juxtaposed designs she says she shared with Converse in November 2019 with both the Bright Poppy and Red Bark editions of the company’s Chuck 70 National Parks high-tops. In the video, Monge states that the shoes and her designs are “essentially the same.”
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Coincidental or not, the controversy sparked by Monge’s video illustrates how complicated and difficult it can be to legally protect fashion design, according to Susan Scafidi, the founder and director of Fordham’s Fashion Law Institute.
Scafidi says American copyright law protects only the two-dimensional aspects of fashion design—like the pattern of a fabric—and not the functional aspects—like the cut of a fabric—and that designers often have to turn to patent law to protect the decorative elements of functional items. But obtaining a patent can present some challenges.
“Over 100 years ago, the United States Copyright Office decided that all fashion, no matter how fanciful, is functional. So copyright doesn’t protect it, which, in theory, means designers could go to the Patent Office to protect their designs,’ Scafidi says. ‘But the Patent Office standards for what qualifies as new are pretty high. In the case of copyright, you can protect anything that’s original. In the case of patent, it has to be new to all the world. And even if you meet that standard, it’s expensive and time consuming. For the average design that will be around for a season and then gone, it’s just not worth it.”
