Steal this Fashion Design?

An article in Salon Steal this fashion design: Sometimes, copying someone else's creation is the right thing to do by Andrew Leonard has an interesting take on intellectual property and piracy issues that plague software and other creative media businesses.

"Like the music, film, video game, and book publishing industries, the fashion industry profits by repeatedly originating creative content. But unlike these industries, the fashion industry's principal creative element -- its apparel designs -- is outside the domain of IP law. And as a brief tour through any fashion magazine or department store will demonstrate, while trademarks are well-protected against piracy, design copying is ubiquitous. Nonetheless, the industry develops a tremendous variety of clothing and accessory designs at a rapid pace. This is a puzzling outcome. The standard theory of IP rights predicts that extensive copying will destroy the incentive for new innovation. Yet, fashion firms continue to innovate at a rapid clip, precisely the opposite behavior of that predicted by the standard theory."

Citing a recent article published in Virginia Law Review The Piracy Paradox: Innovation and Intellectual Property in Fashion Design Leonard feels that the lack of protection in fashion is part of what spurs creativity. Designers must move on, in order to stay ahead of copyists and counterfeiters.

He goes on to say the authors of the piracy article

"offer a wide-ranging tour of the fashion industry in the U.S. and Europe and its relationship to IP law, but the most provocative point they make is this: The speedy copying of new designs contributes to the rapid turnover of the fashion cycle, which in turn boosts the profitability of the entire sector. The hot new elite thing becomes passé so fast that the cognoscenti must perforce move on to something even swankier, asap."

Christine Magdo's Harvard Law paper lays out what protections are currently available, especially in the area of trade dress, for designers. It is a very murky area, and hard to bring suit under trade dress statutes unless you have an established business and an established 'look'. Her discussion on laws that do not offer protection is informative for any designer or artisan looking for the answer to the question: "Can I make this [insert item/pattern you wonder if you can copy] and sell it [insert venue: on the internet/ at the craft fair/ to my local boutique].

An article in The Scotsman from last April lays out some of the issues for the fashion industry, now that the the CFDA "wants Congress to introduce a revision to US copyright law based on a recent statute that gave boat designers protection for their hulls for 10 years. Fashion designers are asking for similar protection for clothing designs for three years." Diane von Furstenburg and other American designers are looking for a path to legal redress for the most egregious line-for-line knock offs.

Some followers of design and fashion may remember Yves St. Laurents successful law suit against Ralph Lauren in the late 1990's under French anti-garment copy laws. Since Ralph had a shop in Paris, St. Laurent was able to prove that a garment on the rack there bore an uncanny resemblance to a registered St. Laurent design. Although St. Laurent was unable to stop the sale of the dress to the rest of the world, he did receive compensation and get the offending garment removed in France.

A paper published at the Boston University site "A Design for the Copyright of Fashion" by Jennifer Mencken, written in 1997 brings up interesting concepts of the "conceptual separability of fashion's artistic elements from the functionality of clothing". Mencken's proposal for design copyright protection merits consideration, now that the CFDA wants us to consider fashion design in the same category as boat hull design. It sounds like lots of new areas of employment opportunites for lawyers to me.
Leonard's Salon article wistfully concludes that

"More fashion goods are consumed in a low-IP world than would be consumed in a world of high-IP protection precisely because copying rapidly reduces the status premium conveyed by new apparel and accessory designs, leading status-seekers to renew the hunt for the next new thing."

Is there some kernal of truth in this? Is there a way to protect fashion design from the more egregious copying and still function freely in the rapidly evolving global market place? Stay tuned. Let's see what the new Democratic majorities in the US Congress cook up on this particular front. It is an issue that is not going away anytime soon.