Should Fashion be Protected by Copyright Laws? A Guest Post

Last week, Kal Raustiala and Chris Sprigman took us behind the scenes of fashion copycatting, and explained why the practice is actually good for the fashion industry. This week, they explore historical and current efforts to protect fashion from copycatters. 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.

Is the Design Piracy Prohibition Act A Good Idea?
By Kal Raustiala and Chris Sprigman

In our last post, we discussed the phenomenon of “red carpet copycats”: those firms that quickly issue copies of the often-striking-and strikingly expensive-dresses worn by the stars at the Oscars. Many apparel firms are very open about this practice, lauding it as a way to provide “bling on a budget.” And, as we explained, this practice is legal under American copyright law, which has never protected fashion in the way that other creative endeavors, such as music or film, are protected.

We also argued that the reason copying is permitted is in part that, in the fashion world, copying has hidden benefits. Styles, as we all know, rise and fall in a ceaseless cycle of trends. That is the nature of fashion. As copies of trendy or noteworthy garments are freely made, fashion-forward consumers recognize that it’s time to jump to the new new thing. The fashion cycle turns even faster.

The interesting effect of copying is to generate more demand for new designs, since the old designs-the ones that have been copied-are no longer special. The overall result is greater sales of apparel. We call this surprising effect the “piracy paradox.”

We think the piracy paradox explains why fashion has remained immune from the steady march toward ever stronger intellectual property rights. From boat hulls to buildings to books, copyright law has been dramatically expanded and strengthened by Congress over the last 50 years. That fashion remains an outlier reflects the unusual incentives of the industry.

Nonetheless, not everyone agrees that copying is beneficial. Indeed, if you are the designer being copied, you may feel otherwise, since you bear many of the costs of copying (such as foregone sales), while others reap the majority of the benefits. For that reason, there have been occasional calls to amend American copyright law to protect fashion designs. To date, none of these efforts have succeeded. But a closer look at them can give us further insight into the economics of fashion.

The first notable effort was actually a private arrangement in the 1930s called the “Fashion Originators’ Guild.” The Guild registered American designers and compelled retailers-some 12,000 across the nation were members-not to sell copies. If a retailer did sell a copy, they were issued a “red card,” and other manufacturers were supposed to boycott them.

The Fashion Originators’ Guild operated for several years before it began to face internal conflict. The major turning point was a lawsuit by Wm Filene’s Sons, Co., the precursor of Filene’s Basement. The Filene’s suit charged the Guild with violating the antitrust laws. While the Guild successfully defended itself, the notoriety created by the Filene’s lawsuit ultimately provoked action by the Federal Government. Ultimately, the Guild was struck down by the Supreme Court in 1941.

In the wake of the Supreme Court’s decision, the former head of the Guild, Maurice Rentner, lobbied Congress to provide copyright protection, stating that a failure to do so would put the fashion business in mortal danger. Many in the industry were opposed to protection, however. Leon Bendel Schmulen, of the Henri Bendel department store, told the New York Times in 1947 that copying was “no danger to the business” and a “natural consequence of fashion.”

In the nearly seven decades since the fall of the Guild, we learned that Bendel was right. We have lived in a Golden Age for American fashion, which grew enormously in sales and influence following the Guild’s demise.

Nonetheless, Rentner’s efforts were revived in 2006, when Congressman Bob Goodlatte introduced the Design Piracy Prohibition Act (DPPA). Updating Rentner’s prediction of catastrophic job losses (Rentner predicted 500,000 lost), Goodlatte’s colleague, Rep. Bill Delahunt, declared that 750,000 jobs were at stake due to design piracy. The DPPA would change this, they argue, by creating an unusual three year copyright in fashion designs.

While the DPPA died in committee in 2006, it was updated and recently reintroduced. (Disclosure: one of us (Sprigman) testified against the bill in the 2006 hearings.)

Is the DPPA a good idea? From our perspective, the bill is both unnecessary and unwise.

The DPPA is unnecessary because for 70 years the American fashion industry has thrived in a world of free and easy copying. To be sure, some designers are unhappy with the status quo and support the DPPA. Proponents point to the speed with which red carpet copycats like Faviana replicate dresses, as well as the great success of repeat copyists like Forever 21, to argue that protection is essential. But while individual cases of harm certainly exist, intellectual property law is meant to be designed with the big picture in mind. Without clear evidence of systematic harm, the case for the DPPA is very weak.

The DPPA is also unwise. Extend copyright to the fashion industry, and designers are going to start fighting over who started a trend.? Ligitation of this sort is great for lawyers-and those firms who can afford good lawyers-but not great for small designers or start-ups, who can be easily cowed or crushed by a lawsuit. And in a field where many believe there is nothing new under the sun, creating monopolies in fashion designs is bound to lead to a lot of lawsuits.

There’s one last point to make here.? Consumers benefit enormously from the fashion industry’s freedom to copy.? Because of copying, the latest styles are not restricted to the wealthy – indeed, copying has played a major role in democratizing fashion.

The bottom line is that there is no shortage of innovation in the U.S. fashion industry.? Right now, in studios in New York and Los Angeles, uncounted thousands of designers are busy churning out new designs.? And they are also busy copying and “interpreting” one another.? And that’s good.

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COMMENTS: 26


  1. Mike says:

    I find it disheartening that this has gotten as far off the ground as it has.

    After fashion is protected by copyright, maybe we can turn our attention to sports.

    Come up with a new move and only you can perform it. The Fosbury flop in track, the Maradonna in soccer, the Dominque Wilkins dunk … Those new X-games sports are coming up with new copyrightable moves all the time.

    And we’ll have more sports lawyers … Was that a Wilkins dunk or was it just a generic windmill with a slight double pump? it would be much more prudent to simply lay it up off the glass rather than risk a lawsuit OR pass it to a teammate who has a license to perform a suitable crowd pleasing dunk.

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  2. William G says:

    This is a very insightful analysis, and I truly think it’s worth thinking about how reducing the role of copyright in other areas would also affect the industry.

    Anytime you suggest reducing the role of copyright on books, movies or music, their proponents argue that it would kill the industry. Are we so sure? Are we sure it wouldn’t actually incentivize it? I believe the lack of restriction on copying fashion leads to more production, and I think it would for entertainment media as well.

    The only people it would really ‘hurt’ are the publishers; the middlemen to skim off the top. It would require actual artists to work harder to earn their wages (so some might argue it hurts them), but I believe it would be much better for society as a whole.

    I don’t think it would be wise to remove copyright, but as economic turnover shortens and marginal costs drop more and more, why is it that copyright is forever being extended?

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  3. p-dicola@northwestern.edu says:

    Hi Prof DiCola

    speaking of copyright and economics…(i didn’t read this yet but my wife just sent it to me)

    Dan

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  4. Walk a mile in my shoes. says:

    Dibs on socks.

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  5. Tonya says:

    All designs are inspired by something – be it a piece of art, a person, or a time period. If that is the case, then isn’t that designer also infringing on someone else’s work? I think it’s a can of worms that shouldn’t be opened.

    Fashion always does full circles anyway. Every year at fashion week, we see how the new designs “echo” a past period. This year for women it’s suits. Hasn’t there been great suits designed in the past? Should every one of these new suits’ designers be sued?

    I don’t mean to say designers are not creative and visionary – I have great respect for them. But I think this is a slippery slope that should be stayed away from.

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  6. jdiec says:

    I think one of the reasons the fashion has been able to flourish under piracy is because the cost of entry into the industry and the intellectual investment per product is relatively low compared to other artistic fields such as literature and film/television/theatre that usually take a considerable amount of time and resources before you reach a finished product.
    Also we put a very high premium on original works and certain name brands of clothes, unlike music where a pirated mp3 will sound just as good as the one you buy from iTunes.
    The only other area I can think of that satisfies both these criteria are the fine arts i.e. painting, sculpting etc. and as much as I dislike the tactics the music and movie industry have resorted to in order to fight piracy, I don’t really see how allowing it to go unchecked will benefit these areas the same way it has for fashion unless people are willing to accept far lower revenues than the arguably inflated ones they are recieving now

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  7. Peter says:

    Why no mention of patents? Clothing designs can be granted patent protection as design patents.

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  8. nate says:

    Why not write about the millions of people who die from lack of access to affordable drugs? Wouldn’t that be a better use of the authors’ talents?

    The whole idea of copyright is a frivolous drama only tangentially related to the real world, and this is a perfect example. Surely, counterfeiting and intellectual property experts can find something more worthwhile to write about.

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  9. Chris Sprigman says:

    There are very few design patents that cover clothing designs — principally because (1) the process takes a long time and is expensive, and (2) patents require “novelty” — i.e., that the design be truly new — a standard which few clothing designs can satisfy. There are a number of design patents on accessories like handbags. Many of these were rather carelessly granted by the U.S. Patent and Trademark Office and would likely, if litigated, be found invalid.

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  10. Christophe says:

    Search for the article “Against Intllectual Property” by Stephan Kinsella; you can find it online by googling it.

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  11. Peter says:

    Chris,

    The point about the expense of patents is certainly valid. However, the fact that few designs would be eligible for patents makes it seem like the ideal solution. Stuff that’s trendy but not importantly new will get copied, but designs that are actually inventive will be eligible for protection.

    US law allows 1 year from publication or sale to file for a patent, so you can even wait for it to be a hit. Though foreign rights would be lost in most cases.

    As to whether they’re likely to be valid, that’s less an issue about the nature of the clothing industry and more an issue of the incompetence of the USPTO.

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  12. Grace says:

    While the ability to copy has played a large role in democratizing fashion, it has also encouraged practices that encourage waste. Retailers such as Forever 21 produce low quality clothing that after a season will be thrown away. Additionally, this clothing is so shoddy that it cannot be recycled. Copyright laws for fashion will give original designers a chance to put quality garments into stores before a million cheap knock-offs can be produced.

    I would also like to challenge jdiec’s opinion that “the cost of entry into the [fashion] industry and the intellectual investment per product is relatively low.” I am currently a fashion design student, and I have witnessed through my fashion internships and through my own work the amount of time and resources that go into each designer’s collection. Fashion simply moves at a faster pace than other artistic fields.

    I would assume that it is easier to comment on this issue as an outsider looking in. As a design student, it is difficult to accept that few people from outside of fashion have much respect for my creativity.

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  13. Grace says:

    Also, I would like to add, the blog Counterfeit Chic (http://counterfeitchic.com/) is a really great blog by Susan Scafidi. She’s a Law professor at SMU.

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  14. Sunny Kalsi says:

    It’s interesting that you say that there’s hidden benefits to copying in the fashion industry, but do not consider the hidden benefits to copying in other industries. What would the effect be if copying was given a greater role in, say, the film, music, and other similar industries…

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  15. ignorant in fashion says:

    Could you follow this article up with one about pricing in fashion? Is a $2000 dress really 10 times better in quality than a $200 knockoff? How is that quality measured? What determines whether a designer will price his dress at $5000 vs $2000? It seems to me like it is more than raw material costs. Thank you!

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  16. Travis says:

    I would have liked more on the idea of fashion as being something that benefits from ‘network externalities.’ That is, because something is new, a copyist copies it. The copy contributes to the popularity of the original, which can potentially in turn result in more sales of the original.

    I’m not sure how that would apply to other fields, like music, movie or video game piracy, because in those there is not nearly as much value placed by the consumer on the brand name as there is in fashion. (Rarely would you see people brag about their actual MGM recorded DVD, or Sony published CD, they just care what the music sounds like.)

    Also, it might matter that fashion is easily transferable. Not sure though.

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  17. JamesV says:

    “What would the effect be if copying was given a greater role in, say, the film, music, and other similar industries…”

    That would be wonderful!

    I think it’s time that we overthrow the shackles of the middlemen, who claim to be taking care of artists, but are really just looking for ways to just take their art, so they can profit off the ridiculous legal monopoly system that they’ve spend the past decades paying off lobbyists to create.

    All art is derivative, let’s make laws that better represent this fact so it’s easier for people to make The Next Thing instead of worrying about it’s relevance to The Previous Thing.

    The fashion industry should be happy they get to do this.

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  18. Gary says:

    Fashion is very different from other industries, the life cycle of a product in fashion is very small as compared to a life cycle of a product say in technology/music. We rarely see ppl. wearing Beatles style clothes these days though we still listen to them…

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  19. J says:

    “I think it’s time that we overthrow the shackles of the middlemen, who claim to be taking care of artists, but are really just looking for ways to just take their art, so they can profit off the ridiculous legal monopoly system that they’ve spend the past decades paying off lobbyists to create.

    All art is derivative, let’s make laws that better represent this fact so it’s easier for people to make The Next Thing instead of worrying about it’s relevance to The Previous Thing.”

    Clearly you have know idea what is involved in creating an artwork OR what is involved in trying to earn something even close to a living wage as an artist.

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  20. Biff says:

    Well….this copyright idea is something that has been brought up time and time again……the honest truth is that I don’t really think regulation would be possible….think about it…..if we copyrighted designs…..well. I mean there’s only so many designs that people really wear after all…like would one person patent blue teeshirts and then everyone else has to pay them royalties…..or would one company “own skinny jeans”? The thing with fashion design….it moves fast, and is really all about borrowing, repurposing, nostalgia, etc…..you can be original in some ways……but if all clothing was always completely original…….um….it would start to be really crazy…and probably head into bad taste or unwearability quickly……..it’s sort of hard to copyright…. If one designer does a purple miniskirt……can no one else do it? for three years? That’s actually sort of bad for fabric mills and trim vendors etc, too……that would mean that only one buyer can have the rights to a fabric or a trim…….Also trends really help buyers for stores plan what to put on the floor and how to merchandise their stores, and what colors they need…….the copyright thing… it’s not very realistic…

    I do agree though that it is hard on the designers who are copied…..you have these enormous fashion retail giants …..who have such volume and command of production that they just find other people’s ideas and knock them off……Forever 21 is always in trouble for this….. last time they lost a case to Trovata (they literally 100% ripped off the collection, not even changing colors….tacky) – http://ny.racked.com/archives/2009/04/13/trovata_takes_forever_21_to_court.php

    It really makes striking out on one’s own difficult….

    I think there is a valuable idea in here somewhere, but it really can’t be all about copyrighting an item….that’s just not very realistic……

    Do I think our current system is unfair for designers….yes.

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  21. fashion-police says:

    A recent post appeared on the New Yorker blog and the topic for discussion was fashion copyright. The case which was presented is that fashion copycatting is good for the fashion industry. First, it encourages greater creativity and second, benefits are afforded to the fashion consumer. The following opinion was offered on the blog: “Because of copying, the latest styles are not restricted to the wealthy – indeed, copying has played a major role in democratizing fashion.” Furthermore, copying is nothing new in the world of fashion as garment styles are often reinvented. If we have a copyright law, lawyers will be the real benefactors who will make a lot of money instead of small and independent designers who lack adequate financial backing. These designers will be crushed by big fashion labels, which already dominate the industry!

    At the heart of the debate is the argument as to whether or not the greater good of the fashion industry outweighs the rights of the creative individual. I have designed and produced clothing for stores such as Sears and The Bay in Canada and also for American department stores; specifically, Wal-mart and Target. In addition, I am an award-winning designer of a women’s fashion label. Consequently, I can appreciate both sides of the discussion. Should certain designers in the industry be allowed to benefit financially from the creativity of other designers? Why are big stores such as H&M, Le Chateau, and “red carpet copycats” saying they have the right to profit from the designs of others?

    Canada has a Creative Common License law whereby you can use the creative work of others to create new work (all or in part by sampling), but you have to pay a royalty to the original creative artist if you are making money from the project. This should extent to fashion.

    I agree that copying and creating a buzz are part of the fashion industry. However, perhaps an industry imitator, such as “red carpet copycats”, which brings high fashion to the consumer at an affordable price, should pay royalties……
    http://www.fashion-police.ca/blog/?s=copy+right

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  22. Mich says:

    Having some similarities in the dresses of different designers has really a high percentage of happening. I know it is important to Dress To Thrill but if others go overboard they must be sued because that is your idea they have stolen.

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  23. mhr says:

    What I don’t understand is the notion that Chanel, Gucci and Versace are “competing” with H&M, Target and Forever 21. They are separate and complimentary markets. Copyright is intended “to promote the Progress of Science and useful Arts,” not to soothe creative egos.

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  24. Rob Levine says:

    While this may be true, it seems sloppy at best, and deceptive at worst, not to mention that many fashion designs are protected by trade dress. Look at all the lawsuits Levis has filed – not on jeans but on the particular logo on their back pockets. One would suspect that the litigiousness of Levis keeps would-be imitators from getting too close to their logo.

    Also, if I’m not mistaken, fashions are copyrighted in Europe. So any study of whether or not fashion would thrive under copyright ought to compare the U.S. to Europe, not the U.S. to, well, nothing.

    I don’t have an opinion on whether fashion ought to be copyrighted – I don’t know enough about it. But any serious consideration of the subject ought to consider existing IP protection (ie, trademark and trade dress) as well as a comparison to Europe.

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  25. Adrian says:

    America is the only industrialized nation not to protect fashion as a work of creativity that can be protected. Fashion flourishes economically and creatively in London, Paris and Milan and they have copyright laws protecting designers against being ripped off.
    If it is right to ban countefeit handbags, it is right to stop people stealing the work of others instead of coming up with their own ideas. Why not apply the writers logic to songs, art, books and just have a free for all?

    An interesting opinion but having the US as an oasis of design piracy is neither ethical, nor economical.

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  26. ang says:

    At the same time, this whole system of “fast fashion” perpetuated by the likes of Forever 21, H&M, etc., leads to a lot of unnecessary waste. Everyone’s so intent on keeping up with the latest trends and going through their wardrobes so quickly that today it’s estimated that we keep only about 21% of the clothing we buy each year, and most of the rest apparently goes to some landfill. (The article I read doesn’t cite its sources…but it sounds quite probable)

    So while you have convinced me the DPPA is generally a bad idea, I have a hard time accepting this whole lack of copyright protections as entirely “good”, since it basically propels fast fashion. I’m all for innovation and the democratization of fashion, but those things don’t necessarily have to come at the hands of the giant, monolithic fashion industry. Indeed, can’t we say that the very economic/cultural dominance of those companies is a bit anti-democratic?

    (http://www.good.is/post/ethical-style-where-do-my-used-clothes-go/)

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