Will fashion design be protected by copyright law?
‘Useful article’ categorization makes fashion design vulnerable to copying.MyongSool Chang
Translated by JayC. Kim
Designer dresses are copied and sold as inexpensive knock-offs days after it is produced but the US does not have regulations to prohibit it. A Korean-American Harvard Law professor has advised in drafting copyright law in the world of fashion.
Jeannie Suk (Suk Ji-young , 37) the first Korean American ever to become professor of law at Harvard University in 2006 was the center of attention from Korean media. Today she is widely recognized in her efforts to help lawmakers enact copyright regulation in fashion design.
On the 7th, the Boston Sunday Globe reported that Professor Suk has advised senator of New York Charles Schumer in enacting regulations for copyright infringement in the fashion industry. Last year, Professor Suk published an article titled “Law, Culture and Fashion Economics” in the Stanford Law Review along with her colleague, Professor C. Scott Hemphil, arguing that fashion design should be given copyright protection.
Professor Suk wore blue jeans, a blazer and no make-up. If we had met on the street she would have seemed to be an attractive graduate student. Her simple appearance made it difficult to imagine her as the enormously accomplished person that she is.
For what may seem difficult for many others, Professor Suk seemed to have achieved them all quite easily. She received her bachelor’s degree in literature from Yale, acquired her doctoral degree from Oxford University as a Marshall Scholar, and went on to attend Harvard Law School on a Paul and Daisy Soros scholarship.
In 2006, Jeannie Suk became the first ever Korean-American professor to teach at Harvard Law School and was awarded the Guggenheim Fellowship in 2009. If she receives tenure next year, she will also be the first Asian American woman to do so.A lesson learned from yielding
Professor Suk gave up on her dream at one time. She dreamed of becoming a ballet dancer while she was studied at the School of American Ballet and studied piano at the Julliard School. Jeannie’s parents however, wanted her to focus on academics.
“My dream at the time was to become a ballet dancer. And I wanted to do that, but I was a child of 15 years old. When it came to a conflict with my parents, they won. That is the only time in my life… ever since that time I took a lesson: If there is something I’m passionate about, I’m going to have the strength to say this is what I want to do. That was I think a very important lesson for me.”
After yielding to her parent’s wishes once, Jeannie Suk made decisions for herself. Using the lesson she learned from compromising as a cornerstone she formulated a strategy for success that would satisfy her passion as well.
Professor Suk did not build her career with a specific goal. “I followed my instincts.” She always pursued what interested her and headed in that direction. Achieving her bachelor degree in literature, she went onto receive her doctorate degree in England. After which she attended law school to become a clerk of the Supreme Court of the United States, a district attorney, and presently a professor of law at Harvard Law School.
Professor Suk followed her instinct and made turns during her career towards her goal of interest which ultimately worked to her benefit as a skier would take turns to avoid falling and even raise his speed.Comfortable upbringing but cultural difficulties
Having had a father who practiced internal medicine and a mother who ran his medical practice, Professor Suk was fortunate to grow up in a comfortable household. However those things could not help her avoid the difficulties that came from cultural difference.
For Professor Suk who immigrated to the US at the age of 6, the greatest challenge was differences in cultural values. For instance, Korean parents would scold children who talked back or argued with them. However, to be successful as a lawyer or a professor, you must be able to dispute and debate with your opponents. For second generation immigrants it is very difficult to be able to discern how to apply this skill in different situations.
At one time language was also a big problem for her. Not being able to understand one word of the English language Professor Suk was “thrown defenseless”’ in her first year of elementary school in the US, she experienced many confusing situations. Growing up in Queens, NY where there was a diverse population of minorities, it wasn’t too difficult fitting in but the language was a heavy burden.Specialist in criminal and family law but also fashion copyright
Being a well known feminist, Professor Suk published a book titled “At Home in the Law: How the Domestic Violence Revolution is Transforming Privacy”, last year. It studies how the law enters the home through the regulation of domestic violence.
Professor Suk’s feminist followers were perplexed upon hearing her venture into the world of fashion. Some feminists deem fashion to be a tool for objectifying women but Professor Suk said she only sees fashion as ‘a part of life’, reported the Boston Globe.
As to how Professor Suk took an interest in fashion law she explained, “The motivation was really about areas of creative activity. My motivation was not specifically about fashion. ... In general I’m interested in expressions of culture and the way the law regulates culture…Fashion is part of our culture. It happens to be one area where copyright currently doesn’t extend.”
At the time when federal copyright laws were passed ‘useful articles’ were omitted from its application.
Fashion is a ‘useful article’ and left out of the enactment. Why Senator Charles Schumer Drew On Professor Suk’s Work
In 2007, Senator Charles Schumer together with Senator Lindsay Graham introduced a draft law in the Senate regarding fashion copyright laws but it was stalled after it was unable to pass through the House of Representatives. Senator Schumer ‘s office consulted Professor Suk in another effort to draft a fashion copyright law.
Copyright laws on fashion is difficult because it is unclear what elements of fashion should be protected and what elements should not be. Enacting copyright protection on fashion may hinder the industry. There are possibilities that the copyright measure will give advantages to giant businesses with bigger capital while putting the smaller companies at an unfair disadvantage.
To judge infringement of copyright in books or articles, “substantially similar is the legal test,” Professor Suk said. “For fashion though, I don’t think that substantially similar should be the test. I think it should be something like substantially identical. Because inspiration is what a lot of fashion is built on,. If you used a broad test like substantially similar, it would be too broad and it would catch too many designers and slow down the industry.”
European nations, Japan and India have enacted copyright laws. But in countries without those laws such as Korea, China and United States counterfeit goods and imitations are everywhere.
The passage of fashion copyright laws in the US will have a great effect on Korean industries as well. For those that are related to the fashion industry and fashion media will be paying close attention to the outcome of Senator Charles Schumer’s potential bill.A New Challenge
Professor Suk’s next goal is to become a tenured professor at Harvard Law School. She stated it is her bigger goal to improve her skills as a professor and accomplish many other projects as well.
Professor Suk was impressed by the work ethic of retired Chief Justice of the Supreme Court David Souter. On Justice Souter, Professor Suk commented, “the unbelievably rigorous work ethic and conscientious integrity in work. I think those two things gave me a lot of inspiration.”