Fashion design objects as cultural property in Italy and in the United States

This dissertation identifies a question which is undervalued,underexplored, and under-asked within the complex of laws that applyto fashion and in legal scholarship exploring fashion: how are fashiondesign objects cultural property? It answers this question by looking tomodern and contemporary Italian fashion design objects as a case study,primarily because the history of Italian fashion, the current activities ofItalian fashion brands, and Italian cultural property law provide readyexamples and tools through which to answer the question. Bypassingthe more common question of whether fashion is art, the dissertationasks how fashion design objects might be of historic, artistic, or othercultural interest for the public under the law such that they may bepreserved and valorized like other cultural properties.The first chapter gives a history of Italian fashion, spotlighting relevantkey historical moments and constant tensions through Italian fashionhistory, including the complex nature of Italian fashion as both localand global, the relationship between traditional Italian craftsmanshipand Italian brands and designers, the inspirational links between Italiancultural heritage and Italian fashion, and the almost inseparable linksbetween intangible design and tangible properties. The second chapterexamines the dilemmas surrounding the definition of cultural propertyunder Italian cultural property law both throughout history and today –a boundless cultural interest, mechanisms of time, and an emphasis onthings. This chapter also explores the relationship between Italiancultural property law and copyright in light of cultural property law’srules on reproductions and its regulation of decoro. The links betweenintangibility and tangibility in the legal definition of cultural propertyunder Italian cultural property law and the work of legal scholars whichexplains cultural property law with reference to text provide thegroundwork for an exploration in the third chapter of how certain texts,despite usually being identified as intangible and therefore outside theproverbial cultural property “box”, may be tangible and thereforecultural property. Such an exploration is fruitful for how fashion designobjects are cultural property since fashion design is often conceived ofas intangible like text and may also incorporate text. The third chaptergives examples of text on a spectrum of intangibility and tangibility,with corresponding examples of fashion design. It crafts a standard forwhen and how fashion design objects might be cultural property or not.In addition to facilitating a test for when fashion design objects may becultural property under cultural property law, this spectrum alsoprovides an opportunity for new comparisons between culturalproperty and intellectual property, and more specifically between cultural property and copyright and their corresponding legal regimes.This comparison is explored in chapter four, which recaps the spectrumof cultural property in terms of tangible text, visible images, intangibletext or intangible images, and testaments having the value ofcivilization. The chapter examines conceptual separability in U.S.copyright law in particular with reference to this spectrum and therecent U.S. Supreme Court case, Star Athletica v. Varsity Brands, to showhow conceptual separability seems, for the category of designs of usefularticles eligible for inclusion in the category of pictorial, graphic, andsculptural works, to be about identifying a possible public culturalinterest in intangible parts of tangible objects, in fashion designs whichare like visible images. In this sense, the dissertation envisions closerties between copyright law and cultural property law and seescopyright as an at times ex ante cultural property regime. Chapter fiveexplores how the history of certain historic preservation laws in theUnited States might allow for a future inclusion of fashion designobjects as part of historic property and acknowledges that certain partsof Art Law and other sui generis norms may protect fashion designobjects as cultural property.The dissertation suggests that while some fashion design objects can becurrently included as cultural property under cultural property law,others cannot. Copyright may play a key role in the protection offashion design objects as cultural property, both when these fashiondesign objects can and cannot be classified as cultural property underthe law. These links suggest that protecting fashion design objects ascultural property and allowing this protection to inform the nature offashion designs as copyrightable subject matter might result in a thinjust as much as a thick copyright. Beyond cultural heritage law is anemerging field for the protection of fashion design objects as culturalproperty which will require considerations of how other legal regimesoverlap with cultural property law as applied to fashion design objects,and the duties and obligations that members of the fashion industryhave in protecting their fashion products as cultural property so as notto risk losing the cultural significance of fashion design objects for thefuture.