Archive for September, 2010

Fashion and Copyright

Thursday, September 9th, 2010 by

Anyone who denies that the work of great fashion designers, like the late Alexander McQueen, isn’t art needs to get their eyes checked. (Above is a sampling of McQueen’s Spring 2010 collection.) Shouldn’t designers have copyright protection for their creative endeavors, just like authors and musicians do? (Photo: Marcio Madeira/

Whether you’re a fashion sensation or fashion senseless, it’s likely that you’re aware of the next big trend this season—copyright protection. A least it will be if a recently proposed bill giving fashion designers copyright of their creative works is passed.

On August 5, 2010, Senator Charles Schumer (D-NY) and ten co-sponsors revealed the Innovative Design Protection and Piracy Prevention Act (IDPPPA), which will extend copyright protection to the fashion industry. With backing from both the CFDA and AAFA, whose combined members make up a majority of the creative designers, manufacturers and suppliers in the industry, it’s an impressive proposal. Word on the street is that the bill is expected to pass this fall with backing from both sides of the aisle.

I see you scratching your head. Weren’t aware that American fashion designers didn’t already have such rights? Don’t sweat it. I didn’t either until I started working on the rights side of publishing. After I got over my initial shock that visual geniuses like Marc Jacobs and Oscar de la Renta don’t have legal protection for their unique creations, I began to realize that I had known this all along.

How many times have I nodded in approval at television makeovers that replicate runway outfits for a fraction of the price? How often do I purchase wares from Forever 21 and Target (known as ‘fast fashion’ or ‘throwaway fashion’), knowing full well that I’m getting ten times the amount of clothing that I would at an upscale boutique toting name brands? It really doesn’t come as a huge surprise that the fashion industry has very little copyright protection. Consider how quickly trends come and go. Better yet, consider trends themselves. Trends in the fashion industry occur because it is legal for designers to copy each other. To many in fashion, this is how it should be. This ability to copy parts and sample pieces—to put your own twist on an existing design—is the essence of fashion’s open creative culture. It pushes the top designers to constantly be innovative and come up with new ideas and, thus, keeps the fashion industry booming.

Kal Raustiala of the UCLA Law School and Chris Sprigman of the University of Virginia Law School explain this phenomenon: “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.’”

Think about it. Once a trend trickles down and is copied over and over, to the point where it’s no longer fashionable, most people are ready to move on and buy up whatever the next trend is. Out with the old. In with the new. It’s also often the case that the copier’s target audience is a completely different demographic from the original fashion designer’s. For the most part, these different levels do not directly affect each other. Chelsea Clinton wasn’t going to buy a knockoff Vera Wang dress if a) she can afford the real thing and b) she’d rather wear actual silk organza and not polyester. The people who buy designer labels expect a much higher standard of quality, including materials and make, and well, the label itself.

Speaking of which, ever wonder why you sometimes see labels all over a piece of clothing or accessory? It’s partly because that’s one thing someone can’t copy: the logo. The fashion industry does have one thing going for it, and that’s trademark protection. So the next time you see a Louis Vuitton handbag with that obnoxious monogram design splashed across it, think of it as a clever way they legally protect their product from copying.

But why isn’t the rest of fashion protected from copycats? Johanna Blakely, Deputy Director of the Norman Lear Center (a media-focused think tank at the University of Southern California), explains: Courts decided long ago that apparel is too utilitarian to qualify for copyright protection. They didn’t want a handful of designers owning the “seminal building blocks of clothing” because then everyone else would have to license this style of skirt or that kind of sleeve from whoever owned the rights to it. This slippery slope situation I understand. And clothing, I agree, is mostly functional. But what about fashion as art?

To me, watching a fashion show is on par with walking around an art gallery. Shouldn’t designers be entitled to some sort of protection for their creativity, just as authors, artists and musicians are? A large faction thinks so, hence the proposed IDPPPA. Ezra Klein, from Newsweek, reiterates that the idea behind copyright is simple: “if people can’t profit from innovation, they won’t innovate. So to encourage the development of stuff we want, we give the innovators something very valuable—exclusive access to the profit from their innovations.”

But it doesn’t seem like a lack of copyright protection is really preventing fashion designers from innovating. In fact, as previously mentioned, it causes them to be even more innovative. What will happen once they’re protected? Will designers get lazy? Will we see a decline in the currently rapid rate new designs are cranked out and turned over? Will up-and-coming designers be too hesitant to put their works out there, for fear of being sued if their designs are too similar to copyrighted ones? Hmmm. Copyright is supposed to protect innovation, not profits.

I suppose these questions and more will be answered in time. For now, I’ll continue doing my part to support fashion designers and the trends they create in the best way I know how—by shopping at Forever 21.