Copyright for Fashion?

The Globe also reports on Harvard Professor and Guggenheim fellow Jeannie Suk's argument that fashion designers need a tailored (ahem!) copyright provision covering their designs. Professor Suk's article, The Law, Culture, and Economics of Fashion, in vol. 61 Stanford Law Review (March, 2009), is summarized in the abstract, in part:

Despite being the core of fashion and legally protected in Europe, fashion design lacks protection against copying under U.S. intellectual property law. This Article frames the debate over whether to provide protection to fashion design within a reflection on the cultural dynamics of innovation as a social practice. The desire to be in fashion - most visibly manifested in the practice of dress - captures a significant aspect of social life, characterized by both the pull of continuity with others and the push of innovation toward the new. We explain what is at stake economically and culturally in providing legal protection for original designs, and why a protection against close copies only is the proper way to proceed. We offer a model of fashion consumption and production that emphasizes the complementary roles of individual differentiation and shared participation in trends. Our analysis reveals that the current legal regime, which protects trademarks but not fashion designs from copying, distorts innovation in fashion away from this expressive aspect and toward status and luxury aspects. The dynamics of fashion lend insight into dynamics of innovation more broadly, in areas where consumption is also expressive. We emphasize that the line between close copying and remixing represents an often underappreciated but promising direction for intellectual property today.

The Globe article tells that Senator Charles Schumer of New York is sponsoring a bill to create copyright protection for fashion designers. (here is a statement on the issue from Schumer) But interestingly, even folks within the fashion design industry have disagreements and nuanced positions on the issue:

The lack of a fashion copyright law here has given rise to an entire industry that reinterprets - fashionistas call it blatant pirating - high design on the cheap. A $2,000 cocktail dress is inexpensively copied and sold for $80 by Forever 21 or pricey Balenciaga shoes are replicated by Steve Madden for $60. There are multiple examples on websites such as Fashionista.com’s [sic] Adventures in Copyright.

Industry experts say small, emerging designers are particularly at risk, even more than big labels such as Marc Jacobs or Michael Kors, because they don’t have the money to fight back when their ideas are ripped off.

Some disagreement
Though Suk may think it’s clear why the fashion world needs tighter restrictions, shoppers and even some designers in Boston aren’t all quick to agree.
Newbury Street-based fashion designer Daniela Corte has seen a few of her dresses copied by other designers, but she takes it as a compliment. She feels a new law may help prevent this from happening in the future.

“Even if they copy and knock it off, it’s not going to have the same texture, it’s not going to have the same finished look, and it’s not going to have the same attention to detail’’ she says. “That’s what sets us apart. When people try on a well-made garment it feels different from something that’s been made in huge numbers.’’ (snip)

Betty Riaz, who owns the boutique Stil, maintains that unlike art or music, fashion thrives on trends, and she said a fashion copyright law would create a legal mess in the courts as multiple designers create their own similar versions of recent trends, such as the one-shoulder gown or studded boots.

“Where do you draw the line?’’ she asks.

(snip)... if Schumer’s bill is going to go anywhere, it won’t be without a fight. Even some in the industry worry that copyright protections may not work for something as utilitarian as garments, that it will ultimately be impractical to discern what is unique from what is just part of a trend.

“To say something is really new and deserves legal protection I think may be challenging,’’ Kurt Courtney, manager of government relations for the American Association of Footwear and Apparel. “A lot of fashion involves taking elements of past things, putting something together, and then making something new out of it.’’

A fashion copyright bill would set a standard that would protect designers from having their clothing and shoes knocked off by cheap imitators. Language is currently being drafted by Schumer’s office to specify just how similar an article of clothing could be to another before facing sanctions as an illegal knockoff. It’s this question of language that has held up previous versions of a fashion copyright bill in Congress.

Fashion logos are already trademarked - think Levi’s back pocket tab and Nike’s famous swoosh. Those logos are easy to protect because it is obvious when they are being imitated. But the unique design of a Michael Kors dress or a Stuart Weitzman wedge heel can be imitated with little recourse. Everyone from established designers such as Diane von Furstenberg to rising stars like Jason Wu have had their designs copied.

In recent months, Trovata, the late Alexander McQueen, and Balenciaga all filed lawsuits against lower-priced brand names including Forever 21 and Steve Madden for copying their looks. Trying these cases can be difficult because there are no current legal standards in place.

The fashion industry argues that this legislation is essential in the United States because young designers can easily be copied by bigger fashion houses or mass market stores, and lack the funds to defend themselves in court. In a letter to the Council of Fashion Designers, von Furstenberg wrote, “Starving artists, struggling writers and independent filmmakers all at least own the rights to their work. Emerging designers, however, remain vulnerable to knockoff artists who can steal ideas straight off the runway and produce copies before the originals even reach stores.’’

Because these knockoffs are legal, the council says that they can now be found almost anywhere.

“The morning after the Oscars or the Emmys, you have pirates sitting on the couch at ‘The Today Show’ talking with Meredith Viera about what Cate Blanchett wore the night before, and then saying they’ll sell a copy for $39.99,’’ says Steven Kolb, executive director of the council. “It really takes away from what designers are doing.’’

From dance to law
While it supports a fashion copyright bill, the footwear and apparel association, which primarily represents fashion manufacturers such Chico’s, DKNY, and Mackintosh, wants to make sure that the wording of any proposed legislation won’t be so strict that it will keep clothing manufacturers from feeling free to follow trends.
“We’re looking at a situation that could add cost or slow down the industry,’’ says Kurt Courtney, manager of government relations for the association. “That’s not something that’s attractive to us.’’

The fashion council has no problem with stores such as H&M, which translates runway trends into its own inexpensive designs (and often collaborates with major designers rather than knocking them off). The problem is when those inexpensive interpretations become nearly indistinguishable from the original.

Because both the council and the apparel association are currently working out potential language for the bill, both sides were hesitant to publicly discuss specifics of what it might say.

“A lot of people think the whole essence of fashion is being inspired by other works, and in that way, couldn’t you say that all fashion is about copying?’’ Suk says. “But everyone knows the difference between being inspired by something, and just taking something and creating a replica of it.’’

After some searching, I located Senator Schumer's bill, S. 1957, from the 110 Congress, in 2007, and a related House bill, H.R. 2033, sponsored by Massachusetts representative William Delahunt. In August, 2007, S. 1957 was referred to the Senate Judiciary Committee and appears to sit there still. H.R. 2033 was likewise introduced in the last Congress, in 2007, and referred to the House Subcommittee on Courts, the Internet, and Intellectual Property, where it appears to languish. It is possible that Professor Suk's article and the stir of the feature in the Boston Globe may restart these bills. (thank you, TinyThom.as, for the citations that will link to Thomas with a completed search!)

The image decorating this piece comes from a New York Post story here about high design shoe ripoffs, and the illustration shows how to spot imitation Jimmy Choo or other designer heels. The article tells how the Knockoffs rip off buyers and prey on child laborers in sweatshops around the world.