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Interview: Susan Scafidi, professor, Fordham University School of Law

Karen Bolipata, New York

Susan Scafidi – a Fordham University School of Law professor who worked on the fashion copyright bill – talks exclusively to Karen Bolipata about IP protection for the fashion industry and why it is the emerging designer who needs it most

There are trade mark and design patent protections for the fashion industry. Why the need for copyright protection?

The core of fashion really falls through the cracks between patents and copyrights and trade marks and trade dress. We police that line between copyrights and patents. Fashion doesn't fit into either easily. It's excluded deliberately from copyrights because it's utilitarian, but it doesn't tend to meet the very high bar for patents. Design patents take so long and are so expensive to get.

With respect to trade marks, of course fashion has reasonably strong protection but only for labels and logos. But the designs themselves - the most creative part - are left out. With trade dress, if iconic it can be elevated. But that's a vanishingly small number of designs.

In so many cases when dealing with copying a fashion design, it's done without copying the label or the logo, especially with...

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