Behind the Scenes of Oscar Fashion

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.

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  1. Mar says:

    Do any design houses own or invest in knock-off
    houses like Faviana? This would be an additional stream of income for the design house. Many designers already do multiple lines at different price points or have cut deals with mass retailers like Target.

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  2. Susan says:

    Having spent more than 3 decades in the retail fashion business I am very familiar with ‘knock offs” and the fact that fashion items are not protected by copyright/patent laws.
    We used to say there is only ONE designer in the world and everything else is a knocked off from that designer.
    FYI, patterns, prints are covered by copyright laws. Therefore if you see the famous Burberry Plaid at a very moderate price…do not buy it…it is an illegal copy.

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  3. João Paulo Brito says:

    I was quite fascinated by this post. I’m a Portuguese lawyer and I have started three years ago with a couple of friends a fashion design company called Pitanga.
    In Portugal, from the name, to colours, prints, models, etc, everything is protected by law. Not only does Portuguese law understand that any item can be protected, but also Europen Union law, which has reinforced that protection and even forced the member States laws to change.
    We don’t make any difference between useful or practical items or not, since every human creation must be protected according to our law.
    The economic reasoning is quite sound, because with the crisis, many small and medium businesses have been closing for the past year, and setting aside the obvious spillover effects of the financial crisis, if there were more companie like Faviana, we might have a healthier and stronger market that would be beneficial for everyone involved.
    Probably open source philosophy works rather well in the fashion industry.

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  4. misterb says:

    I believe the reasoning above also works for computer software. Let’s do away with computer software patents and enjoy a massive piracy paradox expansion of computer capabilities and benefits.

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  5. J. Liney says:

    I am an online retailer for Faviana and other companies that copy expensive red carpet gowns. We are able to offer to women a decent copy of the original meticulously designed dress for a fraction of the cost at http://DressGoddess.com. This is great for the consumer that could never afford the original.Everything in fashion is a derivative of something and all this copying I believe is good for the industry. However, I will tell you that it is ironical and quite amusing when these companies that specialize in these types of copies complain about another company copying one of their copies.

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  6. A. Michael says:

    America increasingly suffers from a lack of awareness and appreciation for the effort that goes into the creative arts whether it be fashion, music , or fine arts. Creativity not copying deserves a high level of respect and protection. It is creativity that generates further development not copying. Unfortunately, the US does not presently have a legal mechanism for protecting fashion design. Our copyright laws are probably not where those advocating design protection should be focused. Rather, we ought to be looking at amending our design patent laws to create a new subset of design patent for fashion design with a short term of protection and flexibility in terms of the standard for “prior art”. Our constituion recognized the need to financially support inventors and creators. A business which simply knocks off the creative work of others may be making cheaper goods available to the masses but they are also undermining the intent and economic vision of the Founding Fathers to support innovation and creativity. It’s time for change. It’s time to respect and support the creative community .

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  7. ignorant in fashion says:

    I had always thought that the large profit margins for these $10,000+ gowns were incentive enough to fuel creativity. I cannot imagine a $10,000 gown requiring 20 times the raw materials or labor costs that a similar $500 gown would, so a single “premier” gown such as this might fetch the same profit 30 or 40 knockoff gowns might. These designers must know that most of us cannot afford their gowns, that the knockoffs do not actually siphon off their customers. If they think the lowly public has no right to emulate their designs, then I have no respect for their snobbery.

    Can someone please explain why these gowns cost so much? And how a designer actually decides whether a gown is $2000 vs $20,000? Is the $20,000 gown really 10 times better somehow than the $2000 gown, which in turn is 10 times better than a $200 gown off the rack at Macy’s?

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  8. mfw13 says:

    I think that one reason that the original designers probably don’t mind is the fact that the companies that produce the knockoffs are targeting an entirely different economic segment and therefore not actually competing with them for the same dollars.

    People who can buy $5000 dresses are not going to buy $500 ones and vice-versa. Therefore, since the copycatting does not cause anybody any economic harm, nobody makes a fuss.

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