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Monday, September 11, 2006

Copyright for fashion designs?

A while back in this space, a contributor justly extolled the virtues of Bravo’s Project Runway. I’m not particularly interested in fashion so I think it’s a testament to how good this show is that it’s had me hooked for a couple years now. And of those three seasons, this one is shaping up to be the best thanks to its inimitable cast of characters: Jeffrey, the edgy but undeniably brilliant punk from LA; Laura, the posh NYC mom with an irrepressible mean streak; and Michael, the hip-hop hipster whose designs are as smooth as his style. Truly, it is a delicious blend of high and low culture.

I mention this because I recently had occasion to revisit a report on the Congressional hearings about the Design Piracy Prohibition Act (DPPA). The bill, which has yet to escape committee, would extend a relatively modest three-year term of copyright protection to fashion designs. The impetus for the legislation appears to be the increasing ease with which cheap versions of high-end fashion can be produced. Thanks to camera phones and other technological advances, it’s now possible to snap a few photos of models on the runway during Fashion Week in NYC, beam them to a factory in China, and have reasonably well-made knockoffs on the rack in mere days.

So Congress, via the DPPA, suggests that this perilous state of affairs warrants a period of exclusive rights in order to protect fashionistas’ designs. For a few reasons, I’m not convinced.

First off, while all creation builds to some extent off preexisting work, fashion designs are particularly derivative (and I don’t mean that in any pejorative sense). For this reason, the industry strikes me as quite similar to hip-hop in that new designs consist to a large extent of riffs on extant famous ones (an homage to St. Laurent, a postmodern twist on Gucci, etc.). The concern that copyright might stifle creativity by rendering proprietary the common fund of source material looms particularly large in industries possessing this collaborative character.

Second, though it's an empirical question, I’m not sure that designers necessarily lose that much from having their stuff knocked off. Imitation might be a form of particularly lucrative flattery here, allowing designs to reach new markets and serving as a form of free publicity for the maker. Of course, designers could have it both ways if they had copyright and could license knockoffs instead. But in such a world, at least some of these secondary markets would simply dry up if they couldn’t afford the licensing fees or if the maker simply decided she didn’t want low-end versions of her work circulating.

Third, the top-down character of the industry seems to weigh against the likelihood of piracy taking a bite out of high-end designers’ livelihoods. The big shows determine the trends for a given year, but there still needs to be some lag time after each of them to figure out what hit and what missed. The big hits from fashion week can be measured by which designers have their work licensed by manufacturers. It’s only then—when the maker has likely turned a profit on his original investment—that a secondary manufacturer will know whether it’s worthwhile to create knockoffs. After all, no one wants to be stuck with a warehouse full of imitations of clothes that were roundly considered fashion disasters.

Regardless, the DPPA would certainly change what one means by the “fashion police.” Instead of referring only to an informal body of catty Mr. Blackwell wanna-bes critiquing celebrity couture, we’d have actual police in the mix—U.S. marshals confiscating offending designs. Perhaps this could enrich fashion critics’ repertoires of sass. “Not only were these cheap knockoffs subject to federal seizure, they were so garish they almost gave me a seizure!” Or maybe I should lay off the one-liners and stick to the law.

Posted by Dave_Fagundes on September 11, 2006 at 06:21 PM in Culture, Intellectual Property | Permalink

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Posted by: Farmasi Review | Dec 29, 2020 3:38:14 AM

what legal protection does a fashion designer
has by law ?

Posted by: carl | Oct 4, 2006 7:05:05 PM

Although it is very interesting to read a well thought out negative to this argument (so many I have read just cry boo hoo for luxury designers), I must respectfully disagree with your argument as it regards creativity. It is unlikely that the copyright period of three years would stifle creativity, as the ‘inspirations’ of most designers tend to be from a much earlier period. Few customers would be interested in a riff on a dress that they purchased two years ago that is still hanging in their closet.

I wholly agree that knockoffs do not take a direct bite out of profits (the people purchasing the $25 copy at H&M are generally unlikely to have ever considered purchasing the $5000 Prada original) but what luxury designers are most concerned about is the global reputation of the brand. Luxury customers desire exclusivity, and prolific knockoffs damage that cache, which is a large part of what they are paying such high prices for. Should we legislate so that luxury brands can remain exclusive? I don’t know the answer, but I do wish that designers would be honest about what they really hope to gain (although obviously this will never happen).

Posted by: K | Sep 17, 2006 3:11:00 PM

I happen to love Project Runway not for the personalities, or for the "fashions" (does "most likely to win it all" necessarily imply or suggest "brilliance"? I'm not sure about that one). I am addicted to PR because it is a show about professionals trying desperately to achieve their best selves through their work. Ultimately they each want their work to be known and respected, and they have decided that one step toward recognition is to put on a very public face, do a bit of shameless self promotion, and risk fantastic failure along the way. Yet all the while they are sincerely working their hearts out to contribute to the dialog happening all around them (literally and figuratively). Am I the only one to whom this script sounds vaguely familiar? I love this show!

Posted by: Chapin Cimino Cody | Sep 12, 2006 9:37:18 AM

Another reference on the issue Dave: my friend from law school, Christine Magdo, wrote a piece here on the issue: http://leda.law.harvard.edu/leda/data/36/MAGDO.html

Posted by: Dan Markel | Sep 12, 2006 8:09:20 AM

How could you forget Uli?

Posted by: Piglet | Sep 12, 2006 1:01:14 AM

Frank: great references, thanks. I look forward to reading the Sprigman and Raustiala paper you mentioned in the Concurring Opinions post. Barnett’s point about couture being a positional good seems right as a descriptive matter, but I think what the fashion industry is worried about these days is the increasing prevalence of high-quality counterfeits. It may be beneficial to designers to have the market flooded with visibly cheap knockoffs, because that highlights the relatively superior position of the real thing. But if the counterfeits are indistinguishable from the original, that doesn’t aid the status of the latter, though it might still increase its value in ways I suggested in the original post (creating new markets, generating free publicity). I’m not really sure that I get the Scafidi point. It’s clearly true that fashion is a creative art as well as a functional craft, but the debate seems more about whether copyright protection would harm or help designers, which seems a very different issue.

Katherine: How audacious to deny the brilliance of the first designer to win a challenge despite having immunity! Jeffrey may be a jerk, but he’s still my odds-on choice to win it all.

Posted by: Dave | Sep 12, 2006 12:14:34 AM

I deny Jeffrey's brilliance.

Posted by: Katherine | Sep 11, 2006 10:15:59 PM

I've pointed to some literature in this post on why design protection might not be needed. Jonathan Barnett suggests a similar economic rationale in his article "Shopping for Gucci on Canal St." But I might dissent from that work on the grounds that the positional competition/built-in obsolescence that it describes as providing compensation to creative people is socially wasteful and exclusionary. (Of course, strong design protection may be even more exclusionary.)

Eric von Hippel also has a wonderful paper somewhere on how French chefs protect their best dishes from copying; norms apparently do a lot more work than law.

But I think Susan Scafidi makes very good points in favor of protection. If one is going to protect things like pop lyrics in copyright, a lot of fashion seems more creative.

Posted by: Frank | Sep 11, 2006 7:19:52 PM

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