Johanna Blakley | Opinions

The Costs of Ownership: Why Copyright Protection Will Hurt the Fashion Industry

The Bowden-Wedge designed by Stuart Weitzman

After three false starts, the Council of Fashion Designers of America finally pulled together a viable bill that will give copyright protection to fashion designs. While the previous three versions of this bill were dead in the water without the support of the much larger (and savvier) American Apparel and Footwear Association, they have decided to support this version and it looks like it’s going to pass.

Although this version of the bill is far less ridiculous than earlier versions, I still think it’s a terrible mistake.

I would be the last one to claim that fashion designs aren’t artful enough to deserve copyright protection, but that’s not really the issue. Copyright protection is a means to an end and that end is the promotion of innovation. Oddly enough, in the fashion industry, the lack of copyright protection has actually increased innovation and any effort to curb a designer’s ability to freely sample from the history of fashion is only going to hurt the industry — artistically and economically.

The Innovative Design Protection and Piracy Prevention Act, as it stands now, would leave all previous fashion designs in the public domain, but new designs would be eligible to receive a protection (with no registration necessary) as long as they “provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.” Companies with enough money to do so can hire lawyers to convince judges (who better start honing their fashion knowledge) that their client’s design is uniquely different from anything else ever made in the history of fashion AND that some other designer’s work is “substantially identical.”

It’s worrisome to think about the frivolous litigation that such legislation could introduce (that’s not exactly what our over-taxed court system needs right now) as well as the ethical problems associated with conferring an arbitrary right of ownership to any Joe Blow who decides to lay claim to a certain combination of design features which used to belong to the public domain.

Right now, designers pore over vintage magazines and patterns and visit museum archives in order to find inspiration for the next season’s look, cherry picking design elements that feel fresh and in line with the current zeitgeist. It’s a refreshingly open process unhindered by legal consultations. Those archives could become battlefields where litigants try to find evidence to support their assertion that a design is or is not unique. The geeky librarian in me is worried that some powerful people may attempt to limit access to particularly rich collections of design history and some unscrupulous types may destroy or hide rare materials that prove that their new design isn’t as unique as they claim.

The scope of items that the bill intends to protect is larger than you probably think. It’s not just ornate red carpet gowns: it also includes coats, gloves, shoes, hats, purses, wallets, duffel bags, suitcases, tote bags, belts, eyeglass frames and underwear. I can only imagine the lengths to which some companies with deep pockets will go to lay claim to an exclusive right to an iconic popular design.

The sad thing is that just about everyone will suffer (well, except for lawyers). Consumers will pay higher prices (someone has to pay those legal fees) and they won’t have the same access to the plethora of knock-offs that allow them to participate in global fashion trends without paying aristocratic prices. Designers who can’t afford legal counsel will worry about being accused of copying and they probably won’t be able to sue if someone copies them because, well, litigation is expensive.

Historically, fashion designers have been denied copyright protection because the courts decided long ago that utilitarian articles should not be protected by copyright. Otherwise, a handful of designers would own the seminal building blocks of our clothing. Every time a new blouse would be made, licensing fees would need to be paid to the supposed originator of that particular sleeve or collar.

Although this bill tries to get around that problem by making the overall design, not elements of the design, protectable, once any design is owned by someone, it has a chilling effect on other designers who intend to tap into the same trend. Supporters of the bill say the copyright period for fashion designs would only be three years…but three years is an eternity in the fast-changing world of global fashion. Now that this final version of the bill has eliminated a searchable registry of protected designs, I’m not sure how designers will be able to figure out what they are not allowed to make. And according to law professors Kal Raustiala and Chris Sprigman, manufacturers and retailers could also be held liable for any copies they sold.

Some designers in the U.S. insist that it’s only in America that they get no respect for their art — that there’s protection in other markets. But if you take a look at the legal structure for protection in the other two largest national fashion industries, you’ll see that the coverage is virtually ineffectual. Japanese Design Law covers apparel, but only if the item is unique: no identical or similar design can have existed before. This is reminiscent of the novelty standard for U.S. patent protection, which U.S. fashion designers notoriously fail to receive.

In the European Union’s Community Design System, apparel is protected, with a less stringent novelty standard than Japan. But despite a very strong “fast fashion” industry in the EU, including H&M and Zara, very few designers register their garments or take their cases to court. In turns out that the problem in the EU is that the novelty standard is too low. All a copyist needs to do is make a minute change to a registered design and then they can register it as their own.

In a recent TED.com talk, I argued that one reason that fashion design has been elevated to an art form is precisely because of the lack of copyright protection. So, while fashion design doesn’t qualify for the same legal protections that other artistic creations have (because the courts have decided that fashion is too utilitarian), the creative possibilities for design and the rapid pace of innovation have increased exponentially. Unlike musicians, filmmakers, photographers, writers, sculptors and graphic designers, fashion designers may incorporate just about any element of their peers’ creative work into their own design.

Anyone familiar with the justification for copyright protection — without ownership there is no incentive to innovate — might be surprised by the critical and economic success of the fashion industry. A complex creative ecology has developed in the fashion world that balances a designer’s need to both stand out and fit in. Since anyone can copy anyone else, they do. The almost magical result of this process is the establishment of trends. Some designers have ascended to the highest echelons of the fashion world and are well-known for setting new trends with their original designs, but all designers admit that they’re inspired by “the street,” where people mix and match their own personal looks, combining a new Marc Jacobs bag with grandma’s vintage sweater with Army surplus boots.

But just because copying is legal doesn’t mean it’s acceptable. In order to succeed, designers have to develop a signature style — a look that everyone will instantly recognize as theirs. Designers who have reputations as innovators don’t want to be accused of copying, so they have a strong incentive to come up with something new every season that’s unique to them and their signature style.

There are several reasons why the fast fashion giants like H&M, Zara, Forever 21 and Topshop haven’t destroyed the business of high-end designers. One obvious reason is that the customer who shops for the $19.99 version of a Chanel skirt is quite simply not the same customer who buys clothing in a Chanel boutique. That’s one reason that so many A-list designers — including Karl Lagerfeld and Vera Wang — have decided to knock themselves off and create lines for lower-end retailers like Target and Kohl’s. Far from cannibalizing their own product sales, these designers realized that they could expand their clientele and their brand by marketing a variety of products at vastly different price-points.

Over and over again, the courts have decided not to give extra protection to the designers who have complained about fast fashion knock-offs because designers have not been able to demonstrate that it has hurt their business.

In fact, the fast fashion industry has actually strengthened the fashion industry overall since it has accelerated the market for global fashion. The big bonus for high-end designers is that their influential designs become influential even faster than before. And because trends are established so quickly, fashionistas who buy the products that top designers sell have an incentive to move on to the next new thing when the masses have settled on the trendy knock-off. By the time the next season comes around, designers must compete all over again for customers hungry for the new designs that best capture the zeitgeist.

Of course this culture of copying has affected the creative process. One lovely side-effect is that high-end designers find themselves challenged to create truly innovative and surprising designs that they believe will be hard to knock-off. Stuart Weitzman, for instance, said that copyists forced him to innovate, as he did with the Bowden-Wedge, whose heel shape requires special materials like titanium or steel. A knock-off using cheaper materials would snap.

The ironic thing is that the fashion industry doesn’t really talk about how revolutionary it really is. The fact that people can steal from one another’s designs is often considered fashion’s dirty little secret.

But it’s time to let the cat out of the bag.

With the widespread use of digital technology, industries with a great deal of copyright protection are being forced to operate as if they don’t have any copyright protection. Their creative work is being shared, whether they like it or not. Some might say that copyright protection has become their crutch — they can’t figure out how to operate without it. We have to wonder whether the fashion industry has some lessons it could teach the music, TV, film and publishing industries. The last thing that fashion designers need is to become dependent on the same crutch that has crippled the media industries.

Posted in: Arts + Culture

Comments [15]

It's about time that the industries develop and innovate with the times. The funny thing about people who love money is that they will do anything to hold on to it. They want to use the old way but they WILL change once they realize that their money will go away if they don't. It's only a matter of time.

Josh Hurtado
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Josh Hurtado

It's a shame that there isn't a way for innocent and struggling designers to have all the rights that copyright protection would give them, without giving huge, rich labels the right to prevent good design ideas from spreading and being accessible to the masses.

I hear so many stories of friends who, during internships or entry level jobs, had their designs used (stolen?) to pocket their employer a huge amount of money. And often this happens after the employee has left, so no credit whatsoever is given.

There are so many small fashion labels and companies who have their ideas and designs stolen on a regular basis, (see: http://tiny.cc/7vplh for just one example) but financially they have no chance of challenging the huge company that stole them, so what do you say about protection for these people? Is fashion simply a free for all where those who can best steal ideas and get away with it succeed?
Fiona Byrne

I usually don't pay that much attention to fashion (which you could guess if you could see what I am currently wearing) but this was a very interesting article. I see a lot of applications here to other industries that are now tightly controlled by copyright protection (which I presume was the author's point). We can thank big corporations for pushing most of the recent changes made to copyright law in the US, so Big Fashion is only following a national trend.

There used to be a set number of years after the creator's death when an item would then be released into the public domain. That length of time has steadily increased, thanks to pressure from companies like Disney that seek to maintain control over their corporate icons. (Mickey Mouse would be in the public domain today if the laws hadn't been changed by legislators working on their behalf.) They now seek protection "in perpetuity" which will be the end of what our founding fathers intended when they wrote the early copyright laws. They sought to protect the original creator, not the people running the company decades later. I can understand Disney's need to maintain control over the iconic figures that continue to enrich the company but at the same time it does stifle creativity and runs contrary to the original purpose of the law.

Adam Smith wrote that "government is instituted to protect the rich from the poor." It seems more and more that our government is instituted to protect Big Business from everyone else.
Kevin Boynton

I agree with Kevin in the sense that there is potential here to extend this discussion to other creative fields and to design (and architecture) intelligence in general. Belatedely, I've argued some arguments in this direction in a coming paper on how and why design intelligence must follow fashion. As a sort of response to Blakey's insights you may now find a sneak preview of the paper at my blog at http://shrapnelcontemporary.wordpress.com/2010/08/19/archives-of-re-incidence-04/.
Pedro Gadanho

I thought USA is a party to the international autor's law (droits d´auteur) so American fashion designers' rights are prevented well enough from plagiarism, piracy etc.
It looks like the bill isn't interested in "copyright" understood as author's law but in "copyright" in meaning of "managing the proprietary interest".
Such statements like Sec. 2.i.1 can carry informations of the bill's future goals. If it won't be dead, it can have strong negatve impact of numerous unexpectable consequences on things also here, in Europe.
Marcin Tatarkiewicz

As someone who is increasingly fascinated by the ever-changing copyright laws, this was a wonderful article. Although, I have to say, after recently seeing the Frist Center exhibit, "The Golden Age of Couture," I might argue that fashion design is incredibly less artistic and innovative now, than it was decades ago. Fashion design now, seems to be nothing more than an industry of mimicry. The only innovation seems to really be on the runways, and not in the stores. I'm not sure how one could really show any design as their "own."

I do also wonder how this might effect the select few in society that make their own clothes, and how the home pattern and sewing industries would be effected.

And a sidenote . . . I'm not sure of how the connection to lawyers making money is a bonus to the article? Shouldn't lawyers be paid for the work they do, just like anyone else? If they are defending a client, seems to me that they should be paid for their work.

"Over and over again, the courts have decided not to give extra protection to the designers who have complained about fast fashion knock-offs because designers have not been able to demonstrate that it has hurt their business."

The consideration missing in Blakley's statement above should be on whether the designer wants their designs revisited in a fast fashion way or not. If they do, then their business is hurt because someone else is fulfilling the niche.

After all, making that choice is part of the designers entire 'idea'. Would designer's have that choice not available to them?

I believe once the argument is reduced to that of a light switch function -- on/off, we will all miss the nuances of protection, when it is needed, how it can be implemented without being cumbersome.
Whitney Sherman

Matt Yglesias at Think Progress had the short version of this post a while ago (http://yglesias.thinkprogress.org/2010/08/we-dont-need-fashion-copyrights/). I think it's safe to say that fashion as a an industry has truly thrived without copyrights thus far and would seem to have nothing to slow it down besides the economy being a hot mess.

I believe the phrase we're looking for here is 'rent seeking'.
Jason Laughlin

Nice blog.. thanks for sharing..

Excellent article. Most definitely going to watch the TED presentation. I'm going to forward this to my fashion student daughter. Check her out at katiegariepy.com. She will be on the runways of NY, Paris, and Milan some day. Designed her first website at 12, started her own business at 15 selling at Etsy, and Ebay. She's going places!
Proud Dad,
Peter Gariepy

You perfectly describe the norms and practices of the fashion industry.

Thanks for conforming to the norms of the academy this time.
Siva Vaidhyanathan

"INNOVATION" You can't be serious!

Copyright law is to protect wealth and the status quo. NOT INNOVATION. "Our Forefather" were wealthy private property owners. "We the People" meant "We the wealthy."

I apprehend so abounding belief of accompany who, during internships or access akin jobs, had their designs acclimated (stolen?) to abridged their employer a huge bulk of money. And generally this happens afterwards the agent has left, so no acclaim whatsoever is given. There acclimated to be a set amount of years afterwards the creator's afterlife if an account would again be appear into the accessible domain. That breadth of time has steadily increased, acknowledgment to burden from companies like Disney that seek to advance ascendancy over their accumulated icons. (Mickey Mouse would be in the accessible area today if the laws hadn't been afflicted by legislators alive on their behalf.) They now seek aegis "in perpetuity" which will be the end of what our founding fathers advised if they wrote the aboriginal absorb laws. They approved to assure the aboriginal creator, not the humans active the aggregation decades later. I can accept Disney's charge to advance ascendancy over the iconic abstracts that abide to adorn the aggregation but at the aforementioned time it does asphyxiate adroitness and runs adverse to the aboriginal purpose of the law.The application missing in Blakley's account aloft should be on whether the artist wants their designs revisited in a fast appearance way or not. If they do, again their business is aching because anyone abroad is accomplishing the niche.

After all, authoritative that best is allotment of the designers absolute 'idea'. Would designer's accept that best not accessible to them?


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Johanna Blakley Johanna Blakley is based at the USC Annenberg Norman Lear Center, where she performs research on global entertainment, cultural diplomacy, celebrity culture, digital media and intellectual property law. She gave a talk about fashion and copyright on TED.com and she will speak at TEDWomen later this year.

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