Passion of a Fashion
Thursday, November 23, 2006
Copyright For Fashion? The discussion
The copying of fashion design originals - "knocking off" or "affordable interpretation," depending on your point of view - is a practice that designers may have grudgingly accepted in the past, when less expensive copies took some time to reach stores and only those consumers who could afford the designer-label originals could be the first to follow a trend. This practice is costing designers greatly as more advanced technology makes it possible to see high-quality copies appear in stores before the original has even hit the market. While it has long been the practice of the American fashion industry to knock off European designs, American designers did not copy one another. They registered their original sketches with a trade group called the Fashion Originators Guild, an organization that urged retailers to prohibit styles known to be knockoffs. In 1941, the Supreme Court held that the Guild was an unreasonable restraint-of-trade; the end of the Guild marked the beginning of the knocking off "free-for-all" that we are familiar with today began. It is now common for imitators to photograph the clothes in a designer's runway show, send the photo to a factory to be copied, and have a sample ready within a couple of days for retail buyers to order. Since fashion collections are displayed in runway shows approximately four to five months before they are available to the public, this leaves the fashion impersonator plenty of time to get the copies to stores at the same time, if not earlier, than the originals. Designers assert that design piracy cuts into their longstanding franchise of uniqueness, lowers their sales volume, and ultimately removes incentives for creativity. Sometimes the same department stores that carry the higher-priced version of a garment will also sell the lower-priced knockoff, often under the store's private label. Knocking-off is widespread in the fashion industry and even those designers who fume over being copied are not above doing it themselves. Because of the speed with which designs can be recreated, it is not even always clear which designer created the original and which designer simply copied it. This discussion will explore how protection of fashion works fits - or does not fit - into the current intellectual property law framework in the United States. The overall organization of this discussion is a systematic consideration of possible protection for works of fashion under copyright, patent, and trade dress law. This discussion will encompass not only the current state of the law, but also proposals for reform, such as an amendment to the Copyright Act to protect fashion works. The central question is whether fashion design is an art worthy of protection or a craft whose practitioners can freely copy one another. In an industry where many designers come out with similar looks each season - and where inspiration is said to be "in the air" - designers and the thriving knockoff industry are fiercely debating the issue. Another key question: whether knockoffs actually benefit the industry as a whole. Copying, some argue, propels the fashion cycle forward by creating popular trends that encourage designers to move on to the next big idea. In what they call the "piracy paradox," law professors Kal Raustiala of the University of California, Los Angeles, and Christopher Sprigman of the University of Virginia argue that copying makes trends drench the market quickly, driving the fashion cognoscenti to search out newer looks. "If copying were illegal, the fashion cycle would occur very slowly, if at all," While they admit copying can harm individual designers, they say Congress should protect industries only when piracy stymies -- rather than encourages -- innovation. Despite the apparent unsuitability of copyright protection to works of...