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Thou Shalt Not Knock Off

Friday, September 14, 2007

Will Congress move to increase copyright protection for fashion designs? Should it?

Fashion Feature Image- 9-14-07As Fashion Week in Manhattan draws to a close, spring’s style commandments are as clear as Charlton Heston’s baritone: Out with exposed flesh; in with bright palettes, color blocking, and minute details like pintucks and pleats. But while high-end designers dominated the runways this week, those too penurious for Proenza Schouler need not resort to sackcloth and ashes: A small army of knockoff specialists are already translating the tablets handed down from sartorial Sinai into cheap-chic for “fast fashion” retailers like Zara, H&M, and Forever 21. Many couturiers, though, regard these woven images as abominations nearly as foul as brown shoes with black slacks. They’re urging Congress to issue an injunction of its own: Thou shalt not knock off.

Peddling counterfeit labels or logos is already illegal, of course, and copyright law protects any graphic images, including unique fabric prints, that are incorporated into a garment. But in the United States, at least, the design of the garment itself has traditionally been beyond the reach of intellectual property (IP) law—largely on the grounds that fashion serves functional rather than aesthetic purposes.

Copying that harms individual designers may be a boon to the industry as a whole, as it popularizes trends and then burns them out, speeding up the fashion cycle and spurring demand for new styles.

The Council of Fashion Designers of America is lobbying to change that. The industry group is pushing the Design Piracy Prohibition Act, which would create a special, limited three-year copyright in fashion designs, with penalties of $250,000 or $5 per copy for violations. The bill has been under consideration in the House since last year, and in August it was joined by a Senate version introduced by New York Democrat Chuck Schumer and eight cosponsors.

In an industry rife with “interpretation” and “homage,” designers had long adopted a relatively laissez-faire attitude toward downmarket copying. Three overlapping trends have begun to change that. The first is the increased speed with which the Internet—and, less obviously, but more importantly, flexible supply chains and just-in-time inventory—allows at least rough copies to appear in stores at the same time as their high-end templates (rather than a season behind the curve). The second is the rise of “masstige” lines at such retailers as Target and Kohl’s, designed by the likes of Marc Jacobs and Vera Wang but aimed at the mass market.

Finally, there’s the popularity of “high-low” aesthetics. As MIT cultural anthropologist Grant McCracken has observed, people typically construct consistent identities by clustering their consumption on one market tier. But those lines are beginning to blur, as mid-market buyers seek to accent ordinary outfits with one high-end accessory, and affluent fashion plates seem more willing to mix and match budget and couture elements. Where once the knockoff buyer was seen as “not our customer,” in the delicate phrasing of renowned designer Tom Ford, many are beginning to see the copies as competition. And masstige collaboration between bold-faced names and discount shops is making some retailers more reluctant to alienate designers by openly opposing new IP rules.

That’s not to say there’s consensus: Industry sources say there’s wide agreement that the current forms of the Design Piracy Prohibition Act need plenty of work before they’re ready for prime time. And even many designers have their doubts about letting the law police imitation. Wunderkind designer Zac Posen has helped lobby for the bill, but he also tells Reuters: “It’s a very fine line of what is a copy and what is inspiration.”

'The test for infringement of a copyright is of necessity vague. In the case of designs, addressed to the aesthetic sensibilities of an observer, the test is...even more intangible.'

The law asks whether a garment or accessory is “closely and substantially similar in overall visual appearance to a protected design”—a question the courts answer using several standards that may vary from circuit to circuit, according to attorney Eric Osterberg, who literally wrote the book on copyright’s “substantial similarity” standard. In some cases, the reaction of the “ordinary observer” defines similarity, whereas in others the eye of the “more discerning” expert provides the benchmark.

Osterberg isn’t convinced the problem is any more insoluble in fashion than it is in music or fiction, but he allows that there will be plenty of uncertainty, at least initially. As the legendary jurist Learned Hand wrote in 1960, “The test for infringement of a copyright is of necessity vague…. In the case of designs, which are addressed to the aesthetic sensibilities of an observer, the test is, if possible, even more intangible.” Still more so, he might have added, when we expect different collections to follow the same seasonal trends.

Even clothes that buck the current style typically have historical precedent. “There isn’t a thing in Women’s Wear Daily right now, from the new collections, that I haven’t seen before,” says Ilse Metchek, executive director of the California Fashion Association, which opposes the law. She believes fast fashion firms will generally be able to find a safe harbor by mining the design archives for the original inspirations behind this season’s runway looks.

Much innovation in fashion, however, is drawn not from catalogues, but from what amateurs on the street are doing. Pop star-cum-designer Gwen Stefani is suing Forever 21 for infringing the trademark of her Harajuku Lovers line with a logo she claims is too close to her own. But as the name advertises, Stefani’s own designs are modeled on the anime-inflected dress of teenagers who hang out in Tokyo’s Harajuku district.

Thorny as these problems may be, a deeper question is whether it’s even proper to frame the debate as being about “piracy,” which implicitly suggests an analogy with illicit copying of software, music, and movies. One way “piracy” rhetoric has clouded the issue is by obscuring the difference between knockoffs and counterfeits. A press release from the office of Virginia Republican Bob Goodlatte, a sponsor of the House version of the bill, invokes Customs and Border Protection statistics showing that “counterfeiting merchandise, as a whole, is responsible for the loss of 750,000 American jobs” and “between $200 and $250 billion in sales.” But counterfeits are illegal under current law, and banning imitations by legitimate retailers may drive consumers, not to the designer originals, but to the black-market bags and blouses that have been linked with funding terrorism.

Designers seem as concerned about dilution as displacement: They worry couture consumers will flee goods that lose their aura of exclusivity.

There are also important differences between the way copying works in fashion and the way it works in other industries. A bootleg copy of a CD or a computer program is a near-perfect substitute for the genuine article: Sony and Microsoft worry about piracy because they fear the copies will directly displace sales. Designers, however, seem at least as concerned about dilution as displacement: They worry couture consumers will flee goods that lose their aura of exclusivity, like Sneetches rubbing the stars from their bellies.

An extreme example of this can be found in the case of Burberry, which saw its British sales decline when counterfeits of the clothier’s distinctive plaid became the unofficial uniform of England’s gauche “chav” culture. But if this is the concern, fashion copyrights begin to look less like conventional IP and more like a modern analogue of the Elizabethan sumptuary laws, which kept class boundaries distinct by specifying who was entitled to wear which fabrics: purple silk for the royal family; gold cloth for ranks above viscount; and velvet for the sons of barons.

Even when the ubiquity of a style harms the sales of particular garments by widely-copied designers, however, it need not lower sales for high-end fashion as a whole. Instead, it may cause lateral displacement, as the fashion elite seek out less common looks. That could yield what legal scholars Kal Raustiala and Christopher Sprigman have dubbed “The Piracy Paradox”: Copying that harms individual designers may be a boon to the industry as a whole, as it popularizes trends and then burns them out, speeding up the fashion cycle and spurring demand for new styles. “When a successful restaurant opens up on a street that’s never had a restaurant before, there’s a way in which the second business is parasitic on the first,” says Raustiala. “But in the United States, we call that capitalism and competition.”

As the copyright office’s own analysis noted, there’s no data showing that knockoffs have done any net harm to high fashion, and the explosive growth of fast fashion has coexisted with a massive luxury boom. Betsy Fisher, who owns an eponymous clothing boutique in Washington D.C., suggests this may be because knockoffs create “fashion groupies,” serving as a kind of gateway drug to couture for the teens who are flocking to fast fashion.

Indeed: What about the children? Discussion of fashion copyrights tends to focus on the ambiguous effect knockoffs may have on high-end design houses. But consumers clearly love the aesthetic options provided by fast fashion, which the CFA’s Metchek notes is highly dependent on retailers’ ability to respond immediately to trendsetting movies, TV shows, and music videos. Designers themselves can meet some of that demand through masstige lines, but they are constrained by the need to avoid diluting their own cachet through overexposure.

The booming growth of fast fashion retailers may also be giving a shot in the arm to flagging domestic apparel manufactures, since the flexibility and fast turnaround their business model requires makes local production more attractive than offshore outsourcing. That’s the path Zara has followed in Europe, where, perhaps ironically, fast fashion flourishes despite the existence of design copyright protection because couturiers have shown relatively little interest in filing and enforcing claims (though some observers believe this is beginning to change).

The Constitution empowers Congress to create copyrights in order to “promote the progress of science and the useful arts,” and often they do just that. But since fashion seems to be progressing nicely on its own, it’s important to demonstrate empirically the need to alter the rules under which the industry has operated for two centuries. The presumption that designing garments involves less creativity than painting portraits or composing symphonies may be misguided. But it would be no less misguided to assume that the restrictions on copying that nourish those art forms would be just as beneficial to fashion.

Julian Sanchez is a contributing editor at Reason.

Image credit: photo by flickr user Peter Duhon.

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