title: Fashion design objects as cultural property in Italy and in the United States
Creators: name: Caponigri, Felicia
Publisher: name: IMT Alti Studi Lucca
Year: 2019

description: This dissertation identifies a question which is undervalued, underexplored, and under-asked within the complex of laws that apply to fashion and in legal scholarship exploring fashion: how are fashion design objects cultural property? It answers this question by looking to modern and contemporary Italian fashion design objects as a case study, primarily because the history of Italian fashion, the current activities of Italian fashion brands, and Italian cultural property law provide ready examples and tools through which to answer the question. Bypassing the more common question of whether fashion is art, the dissertation asks how fashion design objects might be of historic, artistic, or other cultural interest for the public under the law such that they may be preserved and valorized like other cultural properties. The first chapter gives a history of Italian fashion, spotlighting relevant key historical moments and constant tensions through Italian fashion history, including the complex nature of Italian fashion as both local and global, the relationship between traditional Italian craftsmanship and Italian brands and designers, the inspirational links between Italian cultural heritage and Italian fashion, and the almost inseparable links between intangible design and tangible properties. The second chapter examines the dilemmas surrounding the definition of cultural property under Italian cultural property law both throughout history and today – a boundless cultural interest, mechanisms of time, and an emphasis on things. This chapter also explores the relationship between Italian cultural property law and copyright in light of cultural property law’s rules on reproductions and its regulation of decoro. The links between intangibility and tangibility in the legal definition of cultural property under Italian cultural property law and the work of legal scholars which explains cultural property law with reference to text provide the groundwork for an exploration in the third chapter of how certain texts, despite usually being identified as intangible and therefore outside the proverbial cultural property “box”, may be tangible and therefore cultural property. Such an exploration is fruitful for how fashion design objects are cultural property since fashion design is often conceived of as intangible like text and may also incorporate text. The third chapter gives examples of text on a spectrum of intangibility and tangibility, with corresponding examples of fashion design. It crafts a standard for when and how fashion design objects might be cultural property or not. In addition to facilitating a test for when fashion design objects may be cultural property under cultural property law, this spectrum also provides an opportunity for new comparisons between cultural property 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 spectrum of cultural property in terms of tangible text, visible images, intangible text or intangible images, and testaments having the value of civilization. The chapter examines conceptual separability in U.S. copyright law in particular with reference to this spectrum and the recent U.S. Supreme Court case, Star Athletica v. Varsity Brands, to show how conceptual separability seems, for the category of designs of useful articles eligible for inclusion in the category of pictorial, graphic, and sculptural works, to be about identifying a possible public cultural interest in intangible parts of tangible objects, in fashion designs which are like visible images. In this sense, the dissertation envisions closer ties between copyright law and cultural property law and sees copyright as an at times ex ante cultural property regime. Chapter five explores how the history of certain historic preservation laws in the United States might allow for a future inclusion of fashion design objects as part of historic property and acknowledges that certain parts of Art Law and other sui generis norms may protect fashion design objects as cultural property. The dissertation suggests that while some fashion design objects can be currently included as cultural property under cultural property law, others cannot. Copyright may play a key role in the protection of fashion design objects as cultural property, both when these fashion design objects can and cannot be classified as cultural property under the law. These links suggest that protecting fashion design objects as cultural property and allowing this protection to inform the nature of fashion designs as copyrightable subject matter might result in a thin just as much as a thick copyright. Beyond cultural heritage law is an emerging field for the protection of fashion design objects as cultural property which will require considerations of how other legal regimes overlap with cultural property law as applied to fashion design objects, and the duties and obligations that members of the fashion industry have in protecting their fashion products as cultural property so as not to risk losing the cultural significance of fashion design objects for the future.