Copying the work of others without citation is a big no-no in academia, but in the motion picture business (where I used to work), it is par for the course. Film and television writers and directors may obey the letter of the law and avoid plagiarizing blocks of dialog verbatim, but ripping off anything else – settings, plots, characters, tones, sensibilities – is quite common, and sometimes even expected.
The Oscars takes this one step further. On Sunday night, the copycatting won’t even wait until the cameras move inside the Kodak Theater – it will begin on the red carpet outside. Kal Raustiala, a Professor at UCLA Law School and the UCLA International Institute, and Chris Sprigman, a Professor at UVA Law School, are counterfeiting and intellectual property experts. They argue that this kind of plagiarism may be a good thing.
Is Copycatting Good for the Fashion Industry?
By Kal Raustiala and Chris Sprigman
On March 7, ABC will televise the 82nd annual Academy Awards live from the Kodak Theatre in Los Angeles.? Ostensibly, the Oscars are about movies.? But for many people, the Oscars are really about fashion.? Fans and paparazzi press against the ropeline to see Hollywood’s stars walk the red carpet in expensive designer gowns.? The television cameras will be there too, broadcasting the red carpet fashion show to nearly 40 million viewers across the U.S. and many more millions in dozens of countries around the world.? In the process, careers in both the film and fashion industries are made and unmade.
The designers at Faviana will be watching as well-very closely.? Faviana is an apparel firm in New York City. If you go to Faviana’s website, you will see a link titled “Dress Like a Star“.? The link leads to a collection of dresses that are copies of those worn by actresses on television, in movies, and, most importantly, at awards shows like the Oscars. Indeed, the dresses are identified by photos of stars such as Eva Longoria and Keira Knightly wearing the original designs.
Knockoffs like these are a significant part of Faviana’s business, as the company’s website somewhat immodestly makes clear: “For the past 7 years, the company’s ‘designer magicians’ have been interpreting the red carpet looks of Hollywood’s most glamorous stars.”? And Faviana does not try to hide that it does more than interpret the looks; it copies them. Indeed, it trumpets it.? “Ten minutes after any big awards telecast, the Faviana design team is already working on our newest ‘celebrity look-alike gowns,'” says Faviana CEO Omid Moradi.
To see an example of Faviana’s “design-magic”, take a look here.? On the lower right is a picture of actress Amy Adams, looking great in a dress by fashion industry darlings Prouenza Schouler.? And just to the left is a picture of a model wearing a Faviana copy.
Faviana’s creations retail for between $200 and $500 – not cheap, but much less expensive than the multi-thousand dollar designer creations they imitate.? At these prices, Faviana cannot replicate the expensive materials and workmanship of the originals they imitate.? But for many women who could never afford to buy the designer original, that does not matter.? The company, which excels at production of both fashion copies and PR catchphrases, refers to its work as “bling-on-a-budget”.
The existence of firms like Faviana (or ABS, Promgirl, or any of a number of similar houses) raises fascinating questions about intellectual property. First, how can Faviana get away with blatantly copying a dress that someone else has designed? And second, why doesn’t this rampant and very rapid copying destroy the fashion industry? After all, the primary justification for copyright is that it is necessary to encourage creators to invest in creating. Without that protection, copyists would be able to free ride on the work of originators and compete away their profits. Originators, knowing this, would never originate in the first place. Or so the story goes.
Let’s consider the first question: how does Faviana get away with copying others’ designs? The quick answer is that such copying is entirely legal in the United States.? American law does not protect most fashion designs. Copyright law views fashion designs not primarily as artistic works, but rather as “useful articles,” and useful things are not granted copyright protection. This rule reflects the fact that useful things are supposed to be the domain of patent law.? But clothing designs virtually never qualify for patent protection, because they are almost never “novel” – i.e., truly new – in the way patent law requires.
And while fashion brands are fully protected by trademark law, most imitators know enough not to copy the labels. (Those who copy labels are counterfeiters, and can be prosecuted for it).? Since the actual design of a dress is unprotected by patent, trademark, and copyright, Faviana is free to sell its knockoffs.
That Faviana and companies like it can so readily knock off another firm’s design may seem unfair, and designers do complain about the copies that Faviana and many other firms produce.? But just as often, designers – even elite designers – engage in copying themselves.? And that’s a good thing.? Copying, it turns out, provides some very important benefits for designers, consumers, and the entire fashion industry.
To understand why, you need to think about why people buy new clothing.? At least for people with some disposable income, it’s usually not because the old stuff has worn out.? People buy because their clothes have gone out of style.? Shakespeare understood this well: “The fashion,” he wrote, “wears out more apparel than the man.”
Many people buy clothes to stay in fashion, and fashion shifts when new trends emerge.? Copying is an important element of the trend-making process.? Sometimes apparel firms produce very close copies of an attractive design? – we see Faviana doing this with the Oscar dresses.? It is this kind of copying that gets the most attention.? But more often designers turn out apparel that is “inspired” by another designer’s work, but adds some new element that results in a garment that looks similar but not identical.? Designers have a language for this.? They produce designs that are “on trend” by “referencing” others’ work,, and they look enough alike that we recognize them as a trend.
The ability of a firm like Faviana to copy a dress means that hot designs spread rapidly, and trends rise and fall. Copying helps to create trends.? It then helps to destroy them: as more and more designers hop on to a trend, the look becomes overdone, and the most fashion-forward consumers hop off.? Copying, in other words, accelerates the fashion cycle.
In sum, it is through copying that the fashion industry creates trends.? And it is trends that sell fashion. For this reason, fashion designers’ freedom to copy does not harm the fashion industry, and indeed may be one key to the industry’s continued success.?? In previous work we’ve called this “the piracy paradox.” Rather than harming originators, as piracy is supposed to do, in the fashion context it often helps them.
So when you watch the Oscars Sunday night, remember that it won’t just be you, Us Weekly, and Joan Rivers eyeing the dramatic dresses sauntering down the red carpet. Faviana’s watching too.