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 fashion, commentators are often confused by
the anomalies in copyright law under which fashion accessories, works of
architecture, and computer chip designs are eligible for copyright protection.
Some argue that since copyright has already been extended to protect the
aforementioned items, copyright may be the best legal tool that fashion
designers have when fighting design piracy.
For example, Robert
Denicola has argued that it would be more consistent with the legal principles
of intellectual property law to draw the line of copyright with respect to
arguably "useful articles" by shaping whether, in the process of creating the
item, the designer focused primarily on aesthetic or utilitarian consideration.
Such a test would to a great extent improve the odds that works of fashion
would be granted copyright protection, as most fashion designers are concerned
with the aesthetic rather than the functional aspects of their clothing.
The specific extension of copyright to fashion works would have many
advantages for designers. First, a copyright owner may seek an injunctive
remedy to prevent the impersonator of his or her design from making and selling
copies of the original. Second, copyright law allows for the imposing and
discarding of the infringing items. Third, the copyright owner can recover
damages, either actual or statutory, and also profits. Finally, the copyright
owner may be able to recover court costs and attorney's fees. This last remedy
is especially important in fashion design cases, as it allows small new
designers to take on big manufacturers whose greater power and financial
resources would otherwise be an intractable obstacle. Despite these advantages
to fashion designers, an amendment to the Copyright Act for works of fashion is
not likely to be passed soon. As one commentator concisely stated that the
current situation of the legislators and courts has a great deal of trouble
seeing past the utilitarian function of a piece of clothing. While industrial
designs have been the subject of repeated bills, Congress has explicitly
excluded fashion works from these bills. For example, while the Design
Anti-Piracy Act of 1989 would have protected original designs of useful
articles against unauthorized copying, the bill would have barred apparel
designs composed of three-dimensional shapes and surfaces with respect to
apparel. According to one commentator, this exclusion has no basis in any
discernible principle. It was added to help still the vociferous opposition of
retailers to the bill." In this current climate of judicial and legislative
hostility, copyright protection will probably not be extended to specifically
protect fashion works.
Fashion seems to be an industry particularly
ill-suited to legal restrictions against copying. Copying - or "borrowing" or
"reinterpreting" - is prevalent at every level of the fashion industry. When a
lower-priced designer knocks off a higher-priced designer's clothing, the copy
may be a huge success because it offers more value for the price. But it is the
higher-priced designers who are copying each other.
Fashion designers
labors over their finished product just like any other creator or inventor. It
takes hours upon hours of careful effort until a dress with just the right cut
or a purse with the perfect design is complete. Why should this hard work and
effort not grant the person behind the creation some level of security,
allowing them to collect the benefits of their labor?
As a matter of
Public policy it is generally believed that copycats are good for the economy.
The claim asserts that preventing copyright for fashion eliminates the
possibility of a monopoly by providing the consumer with lower priced
knockoffs. Furthermore it is contended that knockoffs really promote business
for the designer by creating a market for a style of fashion. But do we believe
this actually? And what's wrong with having a monopoly on fashion? When a
consumer spends thousands of dollars on a purse or a dress that others will
recognise as a Louis Vuitton or Versace, they should be able to enjoy the
exclusivity that comes with such a purchase. Knockoffs steal from the consumer
of their exclusive right to enjoy a specific product.
There are policy
based arguments behind the government's resistance to providing a copyright for
fashion; ranging from the dislike for creation of monopolies to improving the
market.
If the designer believes another person infringed his
copyright, he could sue those who sell or manufacture the design in any federal
court. Those found guilty would face fines of 250,000 or $5 a copy, whichever
is greater.
Copyright © 2006
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