September 7, 2014
Who Owns Fashion?
Introduction
Models walk the runway in Jason Wu’s show on Friday. Casey Kelbaugh for The New York Times
It’s Fashion Week in New York City and insiders and fans alike have flocked to witness the season’s
new designs. Many of the “fast fashion” retailers are present as well, ready to manufacture similar
styles at a mass-market scale.
But where is the difference between mimicking a trend and theft? Some advocate for better legal
protection for original designs. Do fashion designers need better copyright protection?
Lines Blur With Inspiration and Theft
Giselle Defares is a writer in Amsterdam, who specializes in fashion, film and pop culture.
Updated September 7, 2014, 7:01 PM
Designers have the arduous task of making sure that each season's collection breaks new
ground, but they often pull on previous trends for inspiration. The 1960s and '70s are back this year,
for example, in the prints and textiles of the Creatures of the Wind collection. But when does
"inspiration" become duplication, the theft of a previous design?
Designers often pull on earlier trends for inspiration. But when does 'inspiration' become duplication,
the theft of a previous design?
The line is blurry, to put it mildly. Fashion designers borrow constantly from each other. Earlier this
year, Margherita Missoni, heiress to the Missoni fashion house, called out Michael Kors for copying
her family’s trademark zigzag prints. In June, Karl Lagerfeld was slapped with a copyright
infringement lawsuit by New Balance for nearly identical sneakers.
Designers also pull from the world around them. Moschino took clear inspiration from Spongebob
Square Pants and McDonald’s in its fall collection. And a new lawsuit was just filed against Roberto
Cavalli by California street artists for the brand’s incorporation of their work.
Meanwhile, the latest trends move into the stores of fast fashion retailers like H&M, Zara and Forever
21, which churn out similar styles for down-market consumption. Consumers don’t lose a wink of
sleep over purchasing derivative works — after all, it’s a bargain.
But this landscape is quite different for small fashion houses and young designers, who struggle to
brand themselves with distinctive designs before they are copied.
Intellectual property laws generally do not protect utilitarian items like clothing, although some
original prints, patterns, colors and unique combinations can be protected by copyright.
The latest effort to reform the complex legal system of fashion copyrights, trademarks and patents was
United States Senator Charles Schumer's 2012 bill to protect original elements and arrangements that
“provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs” for
three years each. The bill was not approved.
Now it remains to be seen whether the protection of fashion designs and the openness that lets
designers take inspiration from each other can find a legal balance.
Fashion Designers Need Strong Legal Protection for Their Clothing
Susan Scafidi, a professor at Fordham University, is the founder of the Fashion Law Institute.
Narciso Rodriguez, a fashion designer, is a member of the board of the Council of Fashion
Designers of America.
Updated September 8, 2014, 11:57 AM
This New York Fashion Week, models and editors are stylishly dressed but fashion designers are naked.
Legally naked, that is.
Unlike designers in London, Milan and Paris, American fashion designers lack the intellectual property
protection that would prevent this season’s creations from walking straight off the runway into the hands of
copyists. The legal tools that do protect limited elements of apparel in the U.S. have served as the
foundation of influential fashion empires – Ralph Lauren’s trademarked polo pony and Levi Strauss’
formerly patented metal rivets on jeans come to mind – but for the most part, fashion is excluded from the
system that protects writers, filmmakers, painters, photographers and jewelry designers.
Modern technology has made it increasingly difficult for designers to outrun copyists and achieve a
sustainable return on creative investments.
We have witnessed and experienced hundreds of instances of design piracy, which can be economically
devastating to emerging and independent designers in particular. Modern technology, from the immediate
dissemination of runway images online to the surreptitious presence of cellphone cameras at trade shows
and in factories, has made it increasingly difficult for designers to outrun copyists and achieve a sustainable
return on creative and financial investments without legal help.
Efforts by a nationwide, near-universal industry coalition to modernize U.S. law and support creative
designers have generated proposals in Congress that are cutting-edge models of legal restraint.
These proposals leave every historical garment hanging undisturbed in the vast closet of the public domain,
protecting only new and original items, and then just for three years – the shortest term of intellectual
property protection in the world. Only substantially identical copies can be considered an infringement,
provided that the original designer meets a heightened pleading standard and shows that the alleged design
pirate had a chance to see the original. Even then, the most recent proposed bill includes a three-week
waiting period before filing a lawsuit. There is also an independent creation defense just in case creative
lightning strikes twice, as well a home sewing exception.
In the U.S., both jewelry and fabric prints enjoy full copyright protection for the life of the designer plus 70
years, and court dockets have seen very few lawsuits encrusted in gems or covered with fabric swatches.
The emergence of wearable tech in fashion shows the differences between the two industries: tech, one of
our most successful economic sectors, enjoys extensive intellectual property protection. In other words,
fashion and related industries can adapt well to legal limits on copying.
The eventual passage of a fashion design protection law will benefit consumers by encouraging a range of
affordable choices – as former mass market copyists will hire designers to interpret trends rather than
simply churn out slavish imitations – and at the same time strengthen the domestic industry. Ultimately,
innovative American designers, like their counterparts abroad and in other industries, should be able to reap
what they sew.
Piracy Fuels the Fashion Industry
rs of "The Knockoff Economy: How Imitation Sparks Innovation."
Sprigman is a professor at New York University School of Law and co-director of the
Engelberg Center on Innovation Law and Policy. They are the authors of "The Knockoff
Economy: How Imitation Sparks Innovation."
Updated September 8, 2014, 12:04 PM
When, in 2011, Oprah Winfrey asked Ralph Lauren how he “keeps reinventing,” Mr. Lauren
answered: “You copy. Forty-five years of copying; that’s why I’m here.” Mr. Lauren, a Jewish kid
from the Bronx who built a spectacular career reinterpreting the look of the old WASP aristocracy, was
at least partly joking. But what made the quip funny was the fact that knockoffs are — and always
have been — a pervasive part of fashion.
New York fashion thrives specifically because of piracy. Every time a new design is widely copied,
fashion’s most powerful marketing force kicks in: the trend.
During the Depression, New York apparel houses were famed for their copying; as Time magazine
noted in 1936, “a dress exhibited in the morning at $60 would be duplicated at $25 before sunset and at
lower prices later in the week.”
It is important to remember that copying in fashion is nothing new because today one of the most
common arguments for stricter regulation of clothing designs is that the Internet makes copying so fast
that it destroys the incentive to create.
For 75 years, fashion has been an industry prone to mistaken predictions of its own demise. During
World War II, the fashion designer Maurice Rentner declared that the quick copying of designs would
“write finis” to the dress industry. And for decades after the war, fashion insiders have predicted that
everything from trans-Atlantic air travel and fax machines to computer-aided design and digital
photography would speed copying and destroy their business.
But though the fashion industry has repeatedly tried to convince Congress to ban copying to no avail,
the sky has yet to fall.
That’s because the New York fashion industry has not only survived piracy, it has thrived specifically
because of piracy. Every time a new design is widely copied, fashion’s most powerful marketing force
kicks in: the trend. Copying makes trends, and trends sell fashion. And as a design is copied, it spreads
through — and usually down — the market. That makes the design less attractive to early adopters,
who seek distinction, not diffusion, in their looks. As they move on, designers are ready with new
creations, some of which are then copied, creating a new trend.
Take away this cycle, and introduce copyright lawyers and lawsuits into the fashion industry, and the
result will be a bunch of happy lawyers. It will also mean a poorer, less vibrant fashion industry.
Emulate the European Model
Guillermo C. Jimenez is a professor at the Fashion Institute of Technology in New York and an adjunct
professor of fashion law and business at New York University.
Updated September 7, 2014, 10:08 PM
The world’s most valuable high-fashion brands, like Louis Vuitton and Prada, are based in Europe, as
are the world’s leading “fast fashion” brands, including H&M and Zara. When American designers
like Marc Jacobs and Tom Ford wanted to make names for themselves, they traveled east to Paris and
Milan. It is no coincidence, given that Europe has strong legal protection for fashion design and for
industrial design in general.
When American designers want to make names for themselves, they travel east to Europe, where they
can find strong legal protection for their work.
By contrast, in the United States — a country known for scolding its trading partners for their lax
intellectual property laws when it comes to technology — fashion design piracy is shameless and
commonplace. When Europe-based Zara and H&M wish to “knock off” a trend, they ask their
designers to imitate a style without slavishly duplicating it. But American copycat companies have
been known to dispense with designers entirely: Their employees simply buy the item they wish to
knock off, then send it directly to their factories with instructions to copy it exactly. Certain wellknown American fashion companies have even appropriated entire lines of clothing from their morecreative rivals.
It has been argued that the vibrancy of the American market is actually due to the absence of laws
protecting fashion but this argument misstates both the economics and the law. There is no good
economic evidence that the American fashion market is more vibrant than the European one. And the
legal confusion about which design elements can be freely assimilated and which copies will constitute
infringements actually leads to more misunderstandings and lawsuits.
Because anything considered utilitarian, like clothes or coffee pots, are not covered by U.S. copyright
law, but some components of design are, the legal decisions rendered in these suits are excessively
complicated and contradictory. U.S. copyright protection already extends to elements as disparate as
fabric prints, jewelry, accessories and children’s slippers in the form of a bears’ paws. Trademarks
protect not only logos and brand names, but also certain signature design elements such as red soles on
women’s shoes or a robin’s-egg blue jewelry box. Design patents can protect perfume bottles, designer
eyewear, athletic shoes and even the decorative waistband on a pair of yoga pants. But we are missing
clear and comprehensive extensions of copyright law to cover the overall design of an item.
While large companies with big legal budgets can traverse this minefield, smaller companies and
young designers are often left behind. For the sake of our young designers, and to maintain our
reputation as a nation that respects and generates creativity, we should modernize our fashion
copyright regime.