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Fashion designs in the United States are widely unprotected by intellectual property rights. Knockoff designers often recreate the couture masterpieces of major design houses without paying royalties and without the labor involved in producing the high-end fashion designs. Though recently multiple bills have been introduced into Congress that would grant three years of protection for the actual designs, many argue that this protection is actually damaging to the fashion industry that thrives on competitive creativity. On the one hand, no protective measures for fashion design would be extensive enough to completely prohibit design piracy. Ultimately, however, the damage caused by a fashion copyright law to the entire fashion industry would far outweigh any possible benefits that may be enjoyed by high-end fashion designers. This theory can also be applied to other thriving industries with unprotected intellectual property.

 

This article is extremely useful as evidence for my thesis in that it provides both support and opposition for the fashion copyright argument, concluding that protection of something as abstract as a fashion design would ultimately be detrimental to the industry as a whole. The article is particularly interesting because of its extension of the same reason into other industries that also do not have intellectual property protection. The argument puts in perspective exactly how a copyright law would affect not just one industry, but would inhibit creativity in other industries as well. This aspect adds an extra layer of depth to the argument that supports my overarching thesis.

 

Fashion designs in the United States are widely unprotected by intellectual property rights. Knockoff designers often recreate the couture masterpieces of major design houses without paying royalties and without the labor involved in producing the high-end fashion designs. Though recently multiple bills have been introduced into Congress that would grant three years of protection for the actual designs, many argue that this protection is actually damaging to the fashion industry that thrives on competitive creativity. On the one hand, no protective measures for fashion design would be extensive enough to completely prohibit design piracy. Ultimately, however, the damage caused by a fashion copyright law to the entire fashion industry would far outweigh any possible benefits that may be enjoyed by high-end fashion designers. This theory can also be applied to other thriving industries with unprotected intellectual property.

 

This article is extremely useful as evidence for my thesis in that it provides both support and opposition for the fashion copyright argument, concluding that protection of something as abstract as a fashion design would ultimately be detrimental to the industry as a whole. The article is particularly interesting because of its extension of the same reason into other industries that also do not have intellectual property protection. The argument puts in perspective exactly how a copyright law would affect not just one industry, but would inhibit creativity in other industries as well. This aspect adds an extra layer of depth to the argument that supports my overarching thesis.

This essay by Professor Randall C Picker is his comment to the essay “The Piracy Paradox: Innovation and Intellectual Property in Fashion Design”. It is from the point of view of someone who didn’t know too much about fashion until he read Kal Raustinala and Chris Sprigman’s The Piracy Paradox: Innovation and Intellectual property in Fashion Design. Picker talks mainly about two points- the role of the Fashion Originators’ Guild of America and its demise and then he questions whether a piracy paradox even exists. On March 23, 1976 Time magazine carried a story called ‘Dress War’ which was a discussion of the legal issues happening between the Boston department store Filene and the then newly created Fashion Originators’ Guild of America. Picker states that this guild was set up to protect fashion and deal with ‘style piracy’. Picker says that the Time magazine article describes all the dirty tricks that people would use in the fashion industry. He then uses an excerpt from the piece to show this. The excerpt says that by the early Depression years style piracy was a huge thing, if an item came out in stores in the morning and was priced at $60, by the evening it would have been copied and would be in other stores priced at $25 and later in the week, at even lower prices. Picker explains that the way the Guild dealt with all this was by organizing a registration system and by boycotting stores that sold copies. He then uses the Time magazine story again to analyze whether the Guild’s efforts of protection actually did lead to more creativity and newer fashions. He says that Raustinala and Sprigman in their paper were dubious as to whether the Guild actually wanted more property rights but in his opinion what the Guild was doing was definitely wanted by high- end designers.

Picker’s next main point is about Fashion Durability. he talks of an article from the New York Times in 1947 which says that Maurice Retner, the former head of the Guild wanted legislation in America to be modeled on French legislation. Leon Bendel Schulmen of Henri Bendel on the other hand didn’t really care and was happy living without property rights. he said that by the time anyone could copy his designs, the design itself would be on its way out. Picker argues that famous designs get copied and sold to the masses. People who want ti be dressed in the best and are very fashion conscious would not want to be associated with the masses and what they wear. High-end fashion designers see this and produce something new for this elite market to wear, there by starting a cycle that keeps the fashion market alive. He argues that creating a fashion copyright would only ensure high-end designers the ability to raise their prices and differentiate themselves. The Piracy Paradox paper really questions whether creativity can be sustained without protection. Picker in this essay asks whether the price is worth it.

This source would be useful for my paper as it is an insight into a very interesting paper. I questions the validity of what the authors have written regarding a magazine article that I crucial in this field. I will use this source to help me analyze the issue of sustaining creativity without protection. I will further explore what the paper says about the Guild and how Picker’s interpretation is different to that in the paper he is commenting on.

I chose this fashion web site blog, for the simple reason that the website itself has a unique twinge to it.  It addresses various issues affecting the fashion world, mainly from a retail business point of view. It  is the brain child of Harvard MBA and former consultant, Imran Amed and was started in 2006. In this particular article, the author is talking about fashion copyright and is giving us direct examples of fashion design items that seem to have been copied. The author has two main points, the first one being that sometimes it is very easy to see who is copying whom and to actually identify that piracy is taking place. The blog states an example of  Steve Madden copying a particular show by Fashion House Balenciaga. In this case, it is fairly evident that Madden copied Balenciaga's shoe although they did incorporate some minor changes. Steve Madden is much lower prices than the luxury fashion house Balenciaga. Madden is known to imitate high end style at more affordable prices. The second case that is pointed out in the blog is that of a higher end brand copying another item of clothing by another designer. The blog shows images of the two shirts from both the designers. One of the designers has been identified as top luxury fashion designer Diane Von Furstenburg. The item on show is form her Spring Summer 2008 collection. According to the blog the other shirt (which Von Furstenburg is believed to have imitated) was in stores a whole year and a half before the Spring Summer collection 2008. This example brings up the issue of the public domain. All designers are inspired by something, be it nature, art or other style around. The blog asks whether Gucci came out with their flat shoes with big medallions before or after the very successful Tory Burch did? The blog goes onto to question whether these happenings are copying or coincidence? What really lies in the public domain and who really came up with what first?

This source is useful to my paper as it clearly depicts two examples of copying. I will use the second example to further my argument in my paper and say even the most reputed of fashion designers can be accused of copying. Are they really copying or is this a mere coincidence of creativity?

his essay by Christine Magdo is a detailed analysis of the happenings in the case of fashion protection. She describes the dilemma faced by fashion designers- their runway designs are imitated by knock-off artists, manufactured cheaply, and then sold at lower prices. This system of imitation has been made easier over the years with advancements made in the field of digital technologies. Magdo discusses that it has been customary for a long time, for American fashion designers to imitate European designers. Originally American designers did not copy each other due to an organization known as the Fashion Originators Guild of America which registered designs and was influential in persuading retailers not to sell knock- offs. However in 1941 the Supreme Court said that the guild was against free trade and this way free copying of dresses became popular. Magdo goes onto describe copyright, trademark and trade dress vis-a vis fashion design.

She says that under current U.S. copyright law, fashion designs are not protected as they are ‘useful articles’, however explains that copyright only protects those aspects of the useful article that are ‘separate’ and ‘independent of the utilitarian function of the article’. She explains that fashion designers seeking protection basically have to convince a judge that their item is either not just an item of function and that it’s design element can be separated. Judges verdicts differ and they depend on which circuit he or she sits on. One of Magdo’s main concerns is that it is very hard to determine who copied whom for not only do lower-priced designers knock-off higher priced ones, but even high designers knock off other high priced designers. She states an example where Polo Ralph Lauren was sued by Yves Saint Laurent for copying their tuxedo dress. A few years before that Yves Saint Laurent was fined for copying a jacket by designer Jacques Esterel.

This source is useful to my topic as it tries to remain neutral. It also brings up an interesting aspect of how copying and imitation is not always vertical. I will use the facts it states to argue my point and will further my paper by referring to some of the issue Magdo uses.

 

This article came out in Time magazine on Mar. 23, 1936. It says that trouble between numerous retailers and the Guild of Fashion Designer of America had been developing for years. Retailers complained that the Guild was misusing its position. The Guild’s chairman at the time was dress- maker Maurice Retner, of Polish origin. The article describes an incident when a member from the Guild apparently behaved in an off- hand manner. At Philadelphia department store, Strawbridge and Clothiers, she walked in and demanded that a certain dress which looked like an imitation be taken off the shop floor. She wanted to know the manufacturer’s name but the managers refused to tell her as they knew it was up to their discretion to decide which dresses were copies and which ones weren’t. Two days after this incident all Guild members (Strawbridge and Clothiers were Guild members) were sent out pink notices saying that the department store had refused to cooperate and as a penalty orders from the department store were no longer going to be filed. Similar incidents happened in New York’s Bloomingdales and other stores. By the middle of February 1936 twenty stores had been red-carded by the Guild. The article goes onto state that the National Retail 'Dry Goods Association along with the Associated Merchandising Corp. believed that the Guild’s method of functioning was not in accordance with anti trust laws. Filene department store in Boston complained that the Guild was interfering with the store’s Spring showings and this issue finally developed into a case that went to court which happened when Filene filed for an application for an injunction.

This source is important for my paper as it shows how this practice of imitating began many years ago and is still prevalent. An interesting aspect of this article that I will further discuss in my paper is the concept of the Guild and its significance. Would modern copyright law mimic this institutions practices in any way?

 

This paper is the testimony presented by Narciso Rodriguez before the Subcommittee on Courts, the Internet and Intellectual Property Committee on the Judiciary, in the US House of Representatives. The topic of discussion was whether special provisions were needed to protect unique industries. He was talking on behalf of the Council of Fashion Designers of America. Rodriguez pleads the case of his industry, using his life as an example. He explains the trials and tribulations of his career.

Born to Cuban immigrants , Rodriguez is a true icon of the American dream. He delves into the key aspects that helped him get where he is: a leading American fashion designer, who having previously worked under Donna Karan at Anne Klein, set up his own label in 1998. He explains that his estimated cost of just one 250 piece collection is a little under $6 million. In 1996, Rodriguez rose to fame by designing Carolyn Bessette’s wedding dress when she married John F Kennedy Jr. Pirates copied it and sold about 7-8 million copies, whereas Rodriguez sold only 40 pieces. He says that he spent years perfecting intricacies such as the seams on the dress and it took pirates no time at all to copy the dress when a magazine published the drawings of it. Pirates spend hardly anything creating these copies, they manufacture them in country’s with cheap labor and have them on the shop floor within days. What is striking about this piece is the poignant style in which Rodriguez tells us that his story is not unique, it happens to millions and millions of designers. He draws parallels to fashion copyright in different geographies: In parts of Europe, Japan and India, designers are provided with 15-20 years of protection. Other forms of art such as photography, paintings and music are all protected by copyright law. Rodriguez points out that his form of art uses no less imagination and creativity than the others, so why should it not be given the same protection?

He suggests that congress should not protect all apparel but when it is something that is original or unique, he believes that he or she should have a “small window of protection”. The HR2033 won’t protect people from drawing inspiration from a look, after all, as the designer points out, that is often the mark of success for a designer. He said, “There will be a gigantic public domain of designs that we can all use for inspiration”. Also, consumers would not be the ones who would be prosecuted if they buy these copies, only the manufactures would face legal action against them.

Despite the fact that my argument might not be congruent with Rodriguez’s and I might have a different pe rspective on this issue, this testimony is a very important source for my paper, for it is first hand. I will argue against in my paper against the points that I do not agree with. Rodriguez really touches on all human sensibilities as he narrates his story to get his point across.

 

In this paper, Lisa J Hedrick, argues against a copyright for fashion designs. Before laying down her stance, she spells out all the facts and then goes onto to articulate her own opinion. She uses a brilliant quote from the blockbuster movie The Devil Wears Prada, to begin her paper.  

The fashion industry thrives on glitz, glamour, not to mention change. The shelf life of a product or a design in this lucrative industry is only a few months at the most, making the turnaround  time very fast. Hedrick argues against copyright saying that the cost of litigation would be so high it would be irrational to protect something with such a short shelf life.  

Hedrick begins her paper by explaining the current state of intellectual property law and its failure to protect fashion. The ambiguity of the definitions of the words ‘fashion design’, ‘design’ and ‘apparel’ in The Design Piracy Bills is a major concern and can be projected as being seen as a major reason why fashion won’t actually be copyrighted in a proper manner, if the bills are passed. The many restrictions that will indirectly be put in place by these  bills might eventually cripple the industry. Designers will have to think twice before creating something and to ensure that their goods will be protected by these bills. Hedrick brings up an interesting issue of “conceptual separability” that already exists within current copyright law. It is the only concept under which fashion designs are provided with a minimal amount of protection. But even so, there are numerous tests that the designs have to pass, as Hedrick points out, for them to be protected. For instance a certain item of design or piece of clothing needs to pass the test of whether the button is original or not even the most minor alterations to an item of clothing. 

Hedrick talks of the proposed Fashion design protection under the Bills and later compares current Fashion protection in different parts of the world. European fashion copyright protection with its concept of  the Community design system, would be the closest thing that could be compared with what American fashion protection is aiming for. However the differences in the legal processes between the two demographics make it hard to compare the situation.  

This paper is very essential as a source: not only does Hedrick argue the same point as I do, but she also goes to great lengths to fully explain the legal situation. Her meticulous and thorough method of approaching the issue fully inform the reader of the current scenario. She has also explained this well and even points to a direction where fashion copyright might work. Her sound argument makes for a crucial source.  

United States. Congress. House of Representatives. 109th Congress, 2nd Session. To Amend title 17, United States Code, to provide protection for fashion design [introduced in the U.S. House of Representatives; 30 March 2006].

The Design Piracy Prohibition Act is an amendment to section 17 in process of enactment in the United States Senate. If enacted, it would grant three years of copyright protection to fashion designs. At present, only parts of an apparel can be protected if declared 'original.' This bill would protect the whole piece of an article if enacted. The bill also officially defines ambiguous terms such as 'fashion design' and 'apparel.' In order to obtain the three years of copyright protection, the designer would need to register with the U.S. Copyright Office at least three months before officially distributing the design.

Because this act is a primary source, it will be very useful for my paper. It is an excellent example of one of the many attempts by Congress to enact a fashion copyright bill. Also, because the bill defines many terms commonly used in fashion protection, I will be able to use these definitions throughout my paper. Consequently, many of my explanations will be very clear and not open to more than one interpretation. Finally, the bill serves as a backbone for many of my other sources. Therefore, I will also refer to it when talking about another one of my sources in my paper.

Raustiala, Kal and Sprigman, Chris,Where IP Isn't. Virginia Law Review, In Brief, January 22, 2007; UCLA School of Law Research Paper No. 07-05.

This paper argues that while most areas that require creative ideas for profit advocate strong IP, the global fashion industry is an exception. The general argument in favor of a strong IP consists of three claims. The first alleges that new projects are usually very complicated and expensive to produce. Second, once a new work is created, other individuals can easily and inexpensively copy it. Finally, the individual who does copy this work will sometimes make more money than the original inventor and still keep all of the profit. So if this is the case, why is the fashion industry so successful despite the fact that it operates under a weak IP? This is known as the 'piracy paradox.' Fashion possesses this piracy paradox for two reasons. The first is induced obsolescence, which argues that because in wealthy societies high fashion signifies a high status, it must be created at a fast pace. Once a design reaches down to the rest of society, its value declines and the designers must create a new design to satisfy their affluent customers. However, this repeated cycle is only made possible through a weak IP. Other designers, usually lower ones, are able to copy high-end designs without the copyright problems, and thus the cycle is able run faster. The second reason is anchoring, which also works to keep the IP low. In order for a design to be quickly exhausted, the industry must somehow find a way to make the design popular. It achieves this by 'anchoring' different, but limited, versions of a certain design each season. For example, the design 'anchored' for Fall 2008 is high-waisted skirts. At this moment, hundreds of different types of high-waisted skirts from various designers are for sale. Soon, however, high-end designers will innovate a new design for Spring, and then it will be re-produced once again by lower-end designers and the cycle take place once again.

"Where IP Isn't" explains that the piracy paradox is necessary to keep the fashion industry successful. If IP was not as low as it is, the cycle explained earlier could not operate, thus forcing the fashion industry to weaken and eventually die out. Therefore, this paper will help me argue that a fashion copyright is needed to avoid relentless lawsuits, but it must be a weak one so that most designs can still be re-produced for the cycle. This article will also give me many useful examples to support the claim that a weak fashion copyright is optimal.

Diane Von Furstenberg Studio, LP v. Forever 21, Inc. et al - 19, No. 1:07-cv-02413-VM (United States District Court Southern District of New York July 9, 2007).

This source is court case; specifically, high-end designer Diane Von Furstenberg filed a copyright- infringement lawsuit against the store Forever 21, who has more than once created apparel with designs that were extremely similar to Furstenberg's pieces. In addition to seeking financial damages, von Furstenberg requested a court order that Forever 21 remove and take back the dresses and any promotional display or commercial distribution of any of their pieces that infringe on DVF's copyrights. Furstenberg and many other designers have always had problems with copying from stores such as Forever 21. This is just one example out of numerous other court cases Furstenberg filed against Forever 21. Of course, Forever 21 and other stores at present are still creating knock-off copies of designer dresses because there is still no copyright law enforced prohibiting them from doing so.

This source will be very helpful for my paper because it is an actual lawsuit filed against a store that produced knockoffs of a particular designer. Since this is a specific example, I will be able to refer to this court case when I mention the designers' point of view on fashion copyright and whether it should be enforced. Moreover, including an actual court case will give my essay more credibility.

Johnson, Elizabeth F. "Defining Fashion." Brooklyn Law School.

“Defining Fashion” examines the potential legislation problems and the various approaches courts will likely take in interpreting the term “fashion design” if the Design Piracy Prohibition Act is enacted into law. The current copyright law, governed by the Copyright Act of 1976, does not actually protect “fashion,” although the Act does provide protection for “pictorial, graphic and sculptural works, “so long as the works are not “useful article[s].” This current law also does not protect “design,” with the exception of the Architectural Works Copyright Protection Act of 1990, which provides copyright protection for architectural designs. The article explores the pros and cons if such a bill were enacted and how it would affect the fashion industry. It questions the terms definined in the bill, such as the definition of "fashion design" and "apparel." It argues that because these important terms are defined, legislation might either interpret them too broadly or too specifically, which would cause problems either way. The article also addresses the extent of fashion copyright today and history of the fashion industry. A period structure is mentioned, where designers such as Chanel and Gucci are at the top, and stores such as Old Navy and Wal-mart are placed far down. Two solutions to the excessive copying were also talked about- the DPPA and the VHDPA, which are in the process of being developed. The article further discusses these two approaches and how they would affect the fashion industry and copying. Finally, this article explains how the court interprets a defined term and then provides specific examples. In the end, the article explains that there is no clear solution and the protection of an item depends on the case and that Congress should give assist the courts in interpreting a case.

This source is a great asset to my paper because it explores the consequences if the Design Piracy Prohibition Act were enacted and how it would affect fashion copyright. There are also numerous court cases mentioned and suggestions for courts who interpret the bill differently. Furthermore, this article addresses certain problems that the courts face and the effect of the fashion copyright at present. After I discuss the Design Piracy Prohibition Act (the actual bill is another one of my sources), this article will allow me to further explore the pros and cons of it in my paper. Ultimately, it will support my thesis, but will also allow me to address the other side of the debate.

Pearson, Lisa, Lauren Estrin, and Ling Zhong. "In Vogue." Copyright World Apr. 2007: 1+.

"In Vogue" is a magazine article that also discusses the consequences if the Design Piracy Protection Act ever passes, but it also explores different types of IP and certain laws that pertain to these different types, including copyright, trademarks, and patents. Because different elements of a design may be protected under these different types of IP, this article addresses which of these elements pertain to which type of IP. Then the article continues by stating the advantages and disadvantages of each IP.

I chose this as a source because it is important to properly explain what IP is and its different types in my paper. Because many of my other sources focus on explaining why a fashion industry works best under a low IP but hardly explains what it is, my audience needs to know the definition of IP and how it pertains to my topic. This way, when I actually address my thesis and support it, my readers will understand the argument.

THESIS: Ultimately, because the copying of fashion designs assists the fashion industry in moving on and innovating a new trend, a fashion copyright cannot be enacted for the sake of the advancement of the fashion industry.

U.S. Congress. House. Design Piracy Prohibition Act. 110th Cong., 1st sess., H.R. 2033. (25 April 2007).

This is one piece of legislation proposed to protect fashion designs from piracy. This Design Piracy Prohibition Act would basically give fashion designs protection for three years after the application for registration is submitted. Within this act, the terms fashion design, design, and apparel are defined so as to create a definition of what can actually be protected under this bill. The reason these are defined within this bill is the ambiguous nature of these words. Without a clear definition, there would be way too many interpretations of the clauses of the Design Piracy Prohibition Act. The bill also states the terms for submitting a design for copyright protection. Basically, any rights to protection are lost if the design is not submitted within three months after the design is made public. The bill also briefly lists the monetary penalties for any pirates if found guilty of copyright infringement.

This bill is an important source for any paper on fashion copyright since it provides an example of the types of legislation that would supply design protection. Even though this bill has not gone through, many of the Design Piracy Bills follow this basic structure for fashion copyright. Therefore, this source provides an example of how effective bills can be in providing protection. In addition, many sources reference this bill and its contents. So, it is useful to have the actual bill and its wording to look back upon and analyze as a primary source. The bill basically amends title 17 in the United States Code to provide for fashion design protection. By looking at how proponents of fashion copyright will protect fashion designs, I can decide, within my paper, whether these laws are beneficial or effective enough to even bother enacting. Thomas, the site where this bill is located, also provides a list of sponsors for this bill. There are only fourteen sponsors, which creates suspicion as to how effective or plausible this bill may actually be. Information like this surrounding pieces of legislation make bills useful sources.

U.S. House of Representatives, Committee on the Judiciary, Subcommittee on Courts, the Internet, and Intellectual Property. Testimony of Steve Maiman in Opposition to H.R. 2033. 14 February 2008.

This source is the testimony of Steve Maiman, co-owner of Stony Apparel, against the Design Piracy Prohibition Act. Maiman is completely opposed to extending copyright protection to fashion design. According to Maiman, fashion has grown into a huge, thriving, competitive industry without any help from copyright protection. Nothing has changed recently within the fashion industry to suddenly need copyright protection now. He claims that enacting bill H.R. 2033 will be detrimental to the fashion industry and economy, reduce creativity, and hurt the consumers. He speaks against fashion design protection proponents by stating that customers in fancy boutiques are willing to pay more for apparel despite pirates creating imitation designs. He then addresses the negative consequences this bill will have on the fashion industry, especially firms like Stony Apparel. This bill will make financing firms extremely difficult since retailers will immediately return anything claimed, even falsely claimed, to be infringing. Invoices would become meaningless. Since retailers would also be held liable with this bill, retailers would refuse to do business unless the manufacturing firm can provide compensation for any possible loss. This new demand for compensation will create an even larger finanacial risk for manufacturers and retailers. The fashion industry is already an area filled with risk and this bill will simply add another layer of risk since everyone will have to now deal with the possibility of frivolous law suits. This fear of infringement will lead to an increase in the prices of apparel since designers will need to hire lawyers to interpret their every design out of fear of suit. In addition to price inflations, the innovation rate would slow down. However, the biggest consequence of this bill would be the effect on designers interpreting a trend. If designers are too scared to work with a trend, one of the biggest methods the industry uses to attract consumers will be cut off. This bill will only aid rich, established designers who can afford lawyers. However, the young generation of rising designers with fresh, new ideas will disappear. Fashion copyright will hurt designers, consumers, manufacturers, and retailers. Only lawyers will benefit. Benefitting lawyers is not worth splitting America into a class that can purchase copyrighted clothes and a class who cannot afford to anymore.

This is a very crucial source since it provides a primary account of a fashion manufacturer. Since it is a primary source, it provides real concerns plauging manufacturers and store owners within the fashion industry. Maiman actually has to deal with the consequences of the bill. So, what he has to say comes from experience and is very reliable. Although he is obviously biased since he has a stake in the outcome of this war, his arguments arise from legitimate concerns he would have to deal with if this bill passed. Secondary sources are just opinions of people outside of the industry looking in. He basically structures his argument around the negative consequences of enancting the Design Piracy Prohibition Act. He also addresses the concerns brought up by the other side and then explains why these are unreasonable. By showing the possible consequences of going through with fashion copyright for players in the industry besides himself, such as consumers, designers, and retailers, he effectively makes his position against protection appear to be beneficial for the majority of the industry.

Raustiala, Kal and Sprigman, Chris "The Piracy Paradox: Innovation and Intellectual Property in Fashion Design." Virginia Law Review, Vol. 92, p. 1687, 2006; UCLA School of Law Research Paper No. 06-04. http://ssrn.com/abstract=878401

This detailed article is an in depth view of both sides of the fashion copyright debate. Rather than simply looking at and supporting only one viewpoint on this controversial issue, the authors address both angles to the fashion copyright controversy. They then proceed to prove why support of low IP protection is the better choice despite arguments made in support of fashion copyright laws. This article describes the fashion industry as unique since it continually produces original content while its main creative element remains outside of copyright protection. This appears to condradict the theory of IP rights which claims that copying, which is rampant in the fashion industry, smothers the incentive for innovation. The article then presents the reader with the two overarching arguments. The argument for increased copyright protection within the fashion industry is more of a moral rights claim. This side claims the lack of current fashion design protection is an injustice to the immense creativity put into the creation of apparel. The other side looks at the unique nature of the fashion industry. They claim copying drives the cycle that makes fashion such a thriving, innovative industry. The article then proceeds to delve into past attempts at copyright protection for fashion. One failed attempt was made by the Fashion Originators' Guild of America: they made a deal between designers and retailers to refuse the sale of any copied apparel and boycotted any member of the guild who violated this rule. Since clothing and apparel are considered utilitarian objects, copyright should not apply to fashion design. Patents and trade dress also are not effective methods of protecting copyright. Although trademark is used by designers, it can only be used to protect names and logos, not entire designs. Therefore, bills like HR 5055 are suggested by groups like the CFDA. One of the main concepts of this paper is how induced obsolescene and the positional nature of apparel drive the fashion cycle, which would be incredibly slow and ineffective without copying. In addition, Raustiala and Sprigman explain how free appropriation helps to anchor trends in the industry. So, they conclude that due to induced obsolescene and anchoring of trends, the fashion industry has remained stable despite rampant copying. Finally, the authors address the copyright system in the European Union and how even with protection laws, very few design infringment cases come to court. Additionally, due to the litigious culture of the United States, copyright protection in the US would simply flood the courts with unnecessary cases and reduce innovation due to fear of suit.

This article is of extreme importance to any research regarding the issue of fashion copyright. The article is unique among other scholarly works on this issue in that rather than just delving into one side of the debate, the authors address the arguments on both sides of this fashion copyright war. This is an extremely useful method and structure since it provides the reader with insight into both arguments. However, the article is then strengthened by analyses of both arguments and subsequent counterarguments against those supporting fashion copyright. Since my topic revolves around whether fashion copyright should be enacted or not, having both argments laid out within one coherent paper is extremely beneficial. The paper also looks at previous attempts at fashion copyright. This is important in building the history and basis of design protection in my paper and why these laws should not be enacted in the present day. This article is very important in building the foundation of my argument.

Barnett, Jonathan, Grolleau, Gilles and Harbi, Sana El. "The Fashion Lottery: Cooperative Innovation in Stochastic Markets." USC CLEO Research Paper No. C08-17; USC Law Legal Studies Paper No. 08-21. http://ssrn.com/abstract=1241005

This article puts an economic spin or an economist's viewpoint on the fashion copyright debate. In other words, it applies economic principles to the fashion industry to show why an incomplete property regime, not complete copyright protection, is the most sensible situation for the fashion industry. To build this argument, the author first explains the concept of "fashion risk," the main economic problem in fashion. Due to demand uncertainty in the fashion industry, it is difficult to forsee if a new design will be successful. So, designers need a system of collective insurance to balance the losses from seasonal product failure and the risk of firm bankruptcy. This collective insurance comes from designers allowing limited imitation which maximizes earnings in the long run. Basically, how this economic idea works is that the designer that produces the "winning" design for that season earns a larger prize, keeping the incentive for innovation alive. However, the incomplete property regime also gives smaller profits to the "losing" designers as a kind of insurance against the "fashion risk." This method is termed the "winner take most" approach. The article then transitions into three different types of imitation: mark perfection, design perfection, and quality perfection. These are then related to three different methods of imitation: horizontal imitation, legitimate vertical imitation (knockoffs), and illegitimate vertical imitation (counterfeits). Basically, horizontal imitation is copying among high end designers while vertical imitation is copying of elite designs by lower end fashion designers in a trickle down effect. As stated previously, the fundamental economic problem for designers is demand uncertainty and the associated risk of bankruptcy. By allowing horizontal imitation and legitimate vertical imitation, this risk is greatly reduced. An obvious way to success for the majority of the market is to wait until the winning design is determined for the season by the consumers and then release imitation products as this eliminates risk and increases success. However, this would kill innovation. So, the best solution is incomplete protection-positive yet constrained imitation. The economics equations show that to maximize final wealth and minimize the variance of final wealth incomplete, not complete, property regimes are required. This can be explained by the idea that at one extreme the winner does not make enough and so incentive is low. At the other extreme, insurance is too low and risk is too high. Both of these cases lead to underinnovation. In short, some imitation supports design innovation while too much or too little undermines it. Therefore, only the very few elite firms can afford the complete copyright protection suggested by bills such as the Design Piracy Prohibition Act.

This article is a very unique way to approach this fashion copyright war. It is an invaluable asset to my argument against enacting fashion design protection laws. This article basically utilizes economical principles to build mathematical equations proving that incomplete copyright protection or rejection of recently proposed copyright laws is more beneficial to society than enacting complete protection for fashion designs. The organization of this paper with alternating pieces of mathematical equations and textual analysis creates an extremely convincing and almost indisputable argument due to the logical thought process this method of presentation creates. This article greatly enhances my argument in that it provides an alternative viewpoint, particularly an economist's angle, which still points towards the same conclusion: fashion copyright laws should not be enacted.

Hedrick, Lisa J. "Tearing Fashion Design Protection Apart at the Seams." Washington and Lee Law Review, Vol. 65, No. 1, pp. 215-273, 2008. http://ssrn.com/abstract=1127190

This article presents both side of the copyright debate more in terms of the pieces of legislation proposed for fashion copyright. It goes through the pros and cons of either side of the fashion copyright argument and then argues against the enactment of these laws. Fashion design falls within the negative space of copyright protection. Therefore, designers cannot prevent knockoffs of their original designs. This paper acknowledges that these knockoffs are harmful as they hurt the designer's profits and reputation due to the low quality of imitation products. Piracy causes almost $12 billion of loss in the fashion year annually. The paper is set up this way and the author then skillfully uses all these facts that seem to support fashion copyright to show why copyright laws are ineffective in stopping any of these problems. First of all, terms such as fashion design, apparel, and design are extremely ambiguous but are used within the Design Piracy Bills. This is simply because fashion is hard to define and consequently very difficult to protect. The author also explains that fashion also cannot effectively use patents, trademark, trade dress, or copyright (due to its utilitarian function) for protection purposes. In addition to the vagueness of fashion lingo, the Design Piracy Bills would simply cause congestion of the courts with senseless cases due to the extreme subjectivity that would be involved in fashion court cases. Even if the bills went through, there are so many loopholes that pirates can find within these bills to basically render any protection useless. Finally, Hedrick looks at the fashion laws in the European Union and shows that even with laws hardly any cases come to court regarding piracy. However, she points out the cultural differences in that America is much more litigious and these laws could force designers to pay large amounts of money for lawyers to protect clothing that has a short shelf life. In addition, there is no guarantee that courts will even be able to punish pirates. It is also very possible that the laws enacted in the US would be much stronger than those in the European Union, which could lead to monopolies that would stifle creativity. Although Hedrick is opposed to these laws, she does make some suggestions on how to improve fashion copyright dealings if these laws go through. Overall though, her basic argument is that effective protection by Congress for fashion design is impossible. So, no protection is better than minimal protection. Any benefits that might arise from design protection would diminish rapidly with the cost and time of court decisions on piracy.

This source is obviously beneficial to my argument since it supports my thesis. However, the importance of this source is due to the rational and legal method used by the author to argue against fashion copyright. The author basically looks at the problems with the fashion industry at present and then shows the correlating proposed laws. However, she then analyses these legal proposals to show that they are extremely ineffective at solving the issues surrounding the fashion industry. If anything, these "solutions" might actually make things worse. The argument basically concludes that the fashion industry is inherently incapable of useful intellectual property protection. Therefore, time and energy should not be wasted on implementing laws that will most likely not benefit the industry.

Picker, Randal C. "Of Pirates and Puffy Shirts: A Comment on the Piracy Paradox: Innovation and Intellectual Property in Fashion Design." Virginia Law Review, Forthcoming; University of Chicago Law & Economics, Olin Working Paper No. 328. http://ssrn.com/abstract=959727

This article takes the side of those individuals supporting the enactment of fashion copyright. This argument is made using past attempts at employing fashion copyright laws to protect designs and the results of these attempts. One major example used to support this claim of positive effects resulting from design protection is the Fashion Originators' Guild of America. This guild basically organized registration and monitoring for apparel with a threat of boycott of any retailer who sold knockoffs. The claim here is that this increased intellectual property protection resulted in greater innovation efforts. Although the Federal Trade Commission took down this organization, the article argues that the fact that it formed demonstrates that high end designers do want greater protection. This argument is made against other claims that the members of the industry do not even want increased protection. The argument then continues into the present time and the benefits these laws would endow on the fashion industry. With fashion design protection, high end designers can make credible promises to their consumers, which is impossible with the current amount of knockoffs in the market. With the ability to make credible commitments, high end designers could raise their prices and make more money off their original designs. Therefore, there is clearly a benefit to high end designers that accompanies increased protection. Also, the author argues that imitation in the industry is only one sided with the high end designers having to deal with the rapid imitation of their original designs. With copyright, these designers could promise their consumers that this rapid copying of the apparel they are buying would not occur. Basically, the author here argues that the rampant copying in the fashion industry is detrimental to the high end designers and their customers. Therefore, copyright protection is necessary to protect their rights and keep low end designers from exploiting the low protection regime of the fashion industry.

Although this source complicates my thesis by working against my claims that fashion copyright laws should not be enacted, sources like these are absolutely necessary to develop a strong paper. These claims will provide something for me to argue against and prove incorrect in my argument. Without addressing opposing opinions, the argument and paper would be weak. This article clearly utilizes an analysis of the high end or elite designers to support the claim for increased fashion design protection. However, it avoids looking at the effect of copyright laws on the rest of the fashion industry. However, it is still a useful source as it provides the perspective of a high end designer, the biggest victim of piracy or imitation.

Subcommittee on Courts, the Internet, and Intellectual Property, Committe on the Judiciary, U.S. House of Representatives. Design Law: Are Special Provisions Needed to Protect Unique Industries-Testimony of Fashion Designer Narciso Rodriguez.  14 February 2008.

This source is a testimony by Narciso Rodriguez, a fashion designer and board member of the Council of Fashion Designers of America. This testimony is in favor of HR 2033, the Design Piracy Prohibition Act. He first presents some astounding figures such as the annual loss of at least $12 billion in the fashion industry due to piracy. He then takes the audience or reader through an almost emotional trip by explaining all the training, hard work, and money that goes into becoming a designer. With all the time and money invested within the fashion industry, pirates are just making a risky business riskier. He then constructs an argument for fashion copyright using a sad, personal anecdote. In other words, he plays on emotions and moral rights to make his point. He basically recounts a story about an original design he made that was copied and sold by pirates millions of times. Without protection for fashion design, US companies arise with piracy as their business model. These companies can afford to make large quantities at low prices, causing more sales for the pirating companies than for the original designer. Rodriguez then suggests the positive results of enacting copyright. Pirate companies would be forced to hire real designers, increasing the job market for designers and creating a great choice of original designs for consumers. He admits that in the past clothing was a functional object and therefore did not require protection. However, he believes that fashion has now become an art that is no longer just utilitarian. He then addresses the other side's concerns by claiming that only truly unique designs will be copyrighted, not all designs. He also states that the three year protection period will simply allow designers to reach the market before the pirates. After these three years and with a large public domain still in existence, previous designs can still be used for inspiration. He also addresses the concern that this will increase apparel prices by claiming that accessibly priced clothing will still exist, but the creation of these derivative lines will be through the original designer. Through explanation like these, Rodriguez attempts to passify the concerns on the scope of the legislation of copyright opponents.

This testimony by Narciso Rodriguez is very beneficial since it is a primary source coming from an elite fashion designer. It provides the viewpoint of someone within the fashion industry. Rodriguez begins his argument with a very emotional approach regarding his personal experiences and losses due to piracy. After getting the audience's sympathy, he provides some positive benefits of enacting copyright. He concludes his argument by addressing the concerns of the skeptics of fashion copyright. Rodriguez is a biased source since he obviously can benefit if the copyright laws are enacted. However, his testimony provides some real insight into the minds of fashion designers and the actual issues they face due to piracy. Therefore, this article provides a better sense of the real problems plauging the industry and if these laws can actually address these issues. So, although this testimony may not support my thesis, it provides better issues to address and counterargue than secondary sources would.

Time Inc. "Dress War." Time Magazine, 23 March 1936.

This newspaper article from the 1930s presents a more in depth view of the Fashion Originators' Guild of America. This article was written when retailers began noticing the guild was abusing its powers. This article gives examples of the guilds' abuse of power. The guild basically believed it had the power to decide which pieces of apparel were copies and which were not. If a retailer did not agree to remove whatever the guild instructed them to, the store would be "red-carded." In other words, the guild would inform all designers and manufacturers to boycott this retailer. So, Filene's Department store uses this abuse of power to accuse the guild of attempting to monopolize the fashion industry by blacklisting disobedient retailers and creating heavy penalities for anyone who broke the guild's rules. This particular battle between Filene's and the guild is the core of this newspaper article. However, the author takes the reader through the history of the guild and why it began in 1933. The guild began as a way to pick up the fashion industry during its low point in the Great Depression. The members of the guild agreed not to purchase anything known to be a copy of original designs by guild members. The members agreed to these terms for apparel in the higher priced range. This protection did indeed decrease business mortality and increase original design creation in the high end market. However, once the guild's power began to increase, they starting imposing these protection rules on lower priced apparel as well. The retailers were not happy with this power abuse since they could not compete with chains who were selling these lower priced pieces with no restrictions. In addition, customers buying clothing in this range do not care if their purchases are imitations. So, the guild was basically just abusing their power rather than creating rules to benefit the industry.

Although this article does not necessarily provide direct support for either side of the fashion copyright debate, it is an extremely important resource since it provides the history of a previous attempt at fashion design protection. Therefore, this article will provide a way for me to demonstrate why copyright laws should not be enacted in the present. Although current proposed laws will likely learn from the mistakes of the guilds, this article shows that even in the 1930s, only high end designers wanted protection. For the rest of the industry, copyright laws would cause more harm than good. This article is structured to show the many different and conflicting desires of the various players in the fashion industry. This makes any effective and lasting protection very difficult in this industry. Therefore, this article provides a historical example as support to why effective copyright laws for fashion are not only nearly impossible, but also somewhat harmful.

Sprigman, Christopher. "Fashion Copyright, 'Corruption,' and the Unheard Consumer." Public Knowledge Blog. http://www.publicknowledge.org/node/1404. February 20, 2008.

This blog provides some very useful insight into how the fashion industry works and the corruption plauging the industry. The fashion industry's success can be attributed to the cyclical nature of consumption. Basically, copying helps to set trends, trends lead to consumption, more copying destroys that same trend due to overexposure, and the industry moves on to new trends. Therefore, copying does not harm the process; it is the process that creates profits in fashion. Why then would anyone want to destroy the process that generates money? Sprigman answers this question by accusing the Council for Fashion Designers of America of corruption and selfishness. The CFDA is the group that is promoting copyright laws for fashion design. However, the CFDA only represents a small fraction of the industry, the elite designers. The needs of the thousands of non-elite designers, manufacturers, retailers, distributors, and consumers are completely overlooked by the CFDA. These elite designers, who sell clothes for ridiculous prices, are the only ones who can afford to compete and prosper in a revised industry where every design is subject to infrigement suits. This is because these elite groups are the only ones who can afford lawyers. Just to increase profit a little for the small group of elite designers, the CFDA is going to raise prices and reduce consumer choices in an industry that has been incredibly successful for a very long time. These laws hurt consumers. However, consumer needs are ignored because of corrupt politics. These elite corporations can afford to pay Congressmen to sponsor the passing of bills they support. Therefore, intellectual property laws are badly warped due to elite desires and political corruption.

Although blogs are not necessarily the most reliable sources, the author of this blog is Chris Sprigman, the author of the Piracy Paradox. This blog is so interesting because it provides a completely different take on the fashion copyright war: a political angle. Rather than having an equal amount of people of either side of the debate, Sprigman argues that only a very few elite designers actually support these laws. The other supporters, such as those in Congress, are just a result of corruption. The argument here is the decision made regarding this issue should benefit the majority or the "public good." Since the CFDA is a small fraction of the fashion industry, passing these laws would harm the majority simply because this elite group is able to buy support. Therefore, this article is structured around attacking the CFDA and Congress and their reasons for supporting design protection. This will be very beneficial to my paper and argument since I can use these claims to counterargue declarations that fashion copyright will benefit the industry, consumers, and the fashion cycle.

Rangnath, Rashmi. "Design Protection for Fashion Design and Autoparts: A Bad Idea Times Two." Public Knowledge Blog. http://www.publicknowledge.org/node/1399. February 16, 2008.

This blog considers the design protection for fashion designs and autoparts in terms of markets and niches. In terms of fashion design, the author argues that knockoffs do not damage the market for original designs much at all. Obviously there is some effect on the original designer, but the author argues that this effect is negligible due to the different markets that original designs and knockoffs compete within. Customers who can afford to buy runway designs are going to buy these original designs regardless of how many imitation versions are circulating. This is because the people who are willing to pay so much for clothing want to be able to tell others they are wearing an original. For them, only the original can give them the status they desire. On the other hand, people who cannot afford these original designs do not care if their clothing gives them status. In actuality, these customers still would not purchase the original design if the knockoffs were not present in the industry. These consumers are fine with the lower quality imitation once the trend trickles down. For this reason, elite and original fashion designers have no need to lower their prices to compete with knockoffs and imitations. This is because these two versions are marketing and selling to two different groups of people. They are operating within two different markets. Finally, the blog ends with an attack on elite designers who claim pirates end up selling more imitation versions than the designers can even imagine to sell of their original. The author argues here that in the elite market, the designer can sell very few items at a incredibly high price while pirates may sell thousands of products, but at virtually nothing compared to the original's price. Therefore, the elite designers probably come out ahead in terms of profit. The author makes a correlating argument against autopart design protection, which does not apply to the topic of interest.

This blog was chosen as a source for my paper because it has a very unique approach in looking at fashion designs and their imitations. Rather than looking at the logistics of the fashion industry or as someone from within the fashion industry, this blog arrives at this issue from the viewpoint of a consumer. In other words, the blog looks at the various classes of consumers and their different markets in order to suggest that imitation is not really harming anyone to an extent where copyright laws need to be enacted. By looking at the fashion copyright debate from a consumer and market viewpoint, this blog provides incredible support for my thesis by showing that a lack of copyright laws in fashion actually helps the industry thrive in all consumer markets. With design protection, the market for low end customers may very well be knocked out since a majority of consumers do not shop around in both low and high end markets.

The "little black dress" is a universally known fashion phenomena. However, almost no one can claim the rights to originally designing this fashion garment that lives in every woman's closet. The fashion industry is full of trends and apparel, like the "little black dress," where the origin is unknown due to the vast varieties and imitations of each original design. Due to this rampant copying present within the fashion industry, past and present, a group of individuals has started rallying support for fashion design protection against piracy. Although imitation of original designs by elite designers is widespread in the fashion industry, this very phenomena is what makes the fashion industry so incredibly successful and creates overall economic and long term industrial benefits for the majority of designers, retailers, manufacturers, and consumers. Therefore, fashion copyright laws should not be enacted since the results will be detrimental for a vast majority of the fashion industry. The fashion industry has been thriving for ages and nothing has changed to create need for new protection laws except for the greed of a select minority of elite designers and lawyers. Therefore, we can say the fashion industry is packed with inspired pioneers rather than infringing pirates.

I am interested in this topic because fashion does not currently have any copyright protection for designs. Thus, my question for my project is why the fashion industry is lacking protection, and my thesis is that the reason for such a lack of protection is that both the consumers and designers benefit from there being no protection for fashion designs.

 

Zara, the flagship brand of 5.7 billion Euros holding group Inditex, was begun in Spain in 1975 and currently owns over 750 stores worldwide. Zara strives to deliver fashion apparel by often recreating designs by famous fashion houses at reasonable costs to a younger, more fashion-conscious target market inhabiting cities. Merchandise in every Zara store is guaranteed to be new and limited because of its vertically integrated supply chain, including a state-of-the-art distribution center, which allows the items created by in-house designers to reach retail stores at record-breaking speeds. In addition to Zara’s unique vertical integration, the brand also produces up to 80% of its products in Europe, compared with an industry standard of about thirty percent. This case study closes with the outline of Zara’s goals for the future, including growth and expansion and the issues of logistical dilemmas and ethical questions.

 

The Zara case study, compiled by a student and professor at the London Business School, adds an extra dimension to the fashion copyright dilemma by illustrating the management of one specific opponent to the argument for intellectual property protection of fashion designs. The case details the strategies of mass apparel producers like Zara, including the specific production, distribution, and marketing. This explanation illustrates exactly why Zara and others like H&M and Forever21 are so successful despite their lack of original designs. I will use this study to support my thesis by showing that Zara’s global empire, built on shorter lead times and up to the minute fashion, allows for increased competition across all levels of the fashion industry. This case study will also be useful to more fully understand the business aspect of the fashion industry and affordable fashion in particular.

 

The research paper addresses the anomaly that is the fashion industry, where creative goods are produced without the intellectual property protection enjoyed by most other industries in the United States. Though reproductions of original haute-couture designs by mass apparel producers are common, thriving competitive creativity continues to drive the successful fashion market, thus upheavals due to lack of copyright protection are rare within the fashion community. The Piracy Paradox argues that the fashion industry “counter-intuitively operates within a low intellectual property equilibrium” where copying actually promotes rather than discourages innovation. First, the fashion industry and its dynamics are detailed in order to understand exactly how the recreations are produced. The paper then discusses the two fundamental parts of the piracy paradox: induced obsolescence and copying, which both suggest that copying promotes the status-conferring power of fashion. Lastly, the paper discusses how this model can be applied to the relationship between copyright and innovation in other industries.

 

"The Piracy Paradox" is a main anchor of research that will be utilized as support for my thesis. This research paper is of the most extensive documents available on the subject of fashion and copyright. The research paper meticulously details how the system functions and flourishes despite lack of protection for intellectual property, which in this case is the fashion design. Because much of the material in other references regarding copyright and fashion have been influenced by this research paper, it is necessary to include this document in my analysis of the matter as a firsthand account.

 

This lawsuit was filed by renowned design house, Diane Von Furstenberg Studio L.P., against the Target Corporation. The New York-based designer is suing Minneapolis-based Target Corp. in federal court in Manhattan for allegedly selling a dress with a print that is almost identical to the designer’s “Spotted Frog” design. DVF initially sent a notice to Target, which resulted in the retailer removing the alleged “Merona Animal Print Wrap Dress” from its website, however the dress is still being sold at Target retail stores. The fashion designer has been a fixture of the fashion industry for decades, and is credited with developing the popular wrap dress and unique prints in the 1970s that the public has come to associate with the designer. DVF demands that Target cease all sales of the imitation dress.

 

This suit will be used as a primary source, defending designers’ plea for a copyright law to protect fashion designs. The first-hand account will serve as a necessary counter to the argument that fashion designs should not be protected by law, in order to promote and ensure creative competition. This suit represents a multitude of cases initiated by high-end fashion designers against mass producers of apparel that have recreated unique designs for a fraction of the price. This particular suit was chosen due to the prominence of both labels to the general public.

 

Guru Denim, a subsidiary of True Religion Apparel, filed a trademark infringement and copyright infringement complaint to stop the copying of its jeans and sales of fakes and counterfeits allegedly by a number of defendants. Guru Denim owns a patent for the stitch pattern applied to True Religion Brand Jeans, and two Copyright Registrations for the jean designs. The jeans and other denim apparel created by Guru Denim can be sold from $170.00 to $300.00 due to its acclaim in the fashion industry for its name recognition which represents quality craftsmanship. In this case, defendants have been selling allegedly fake and counterfeit jeans on their Websites that claims to sell “only first-quality, genuine designer fashion items.”

 

This suit serves as an argument against the idea that fashion designs should not be protected under copyright law. However, the lawsuit is correct in citing that it is illegal to falsely advertise an counterfeit or fake article as an authentic original design. A fashion copyright law would protect other fashion designs similar to those of Guru Denim from being counterfeited and faked, which is necessary to uphold the integrity of designs. This case supports my thesis, however, in that copyright protection for fashion designs would also inhibit producers from creating similar designs to those created by high-end fashion designers, therefore asphyxiating creative competition within the market and consequently stunting the growth and globalization of the fashion industry.

 

This bill, introduced on March 30, 2006 by Representatives Goodlatte, Delahunt, Coble, and Wexler, is the first of three bills intended to extend copyright protection to fashion designs for a length of three years. It defines infringement as any article the design of which has been copied from an image of a protected design without the consent of the owner. H.R. 5055 would increase allowable damage awards for infringement of original designs. The proposed bill states that it is not considered infringement to create any article resembling a design without previous knowledge that the original design is protected. The Register of Copyrights would be responsible for determining whether a design’s subject matter qualifies as original, which would allow for the design to be registered as an original design and protected by copyright.

 

This bill, along with its counterpart in the Senate, S 1957, and its second attempt at passage in the House of Representatives under the bill, H.R. 2033, is at the core of the fashion copyright dispute. I will utilize this bill as a primary source for my thesis. H.R. 5055 will be utilized to argue my thesis that allowing designers to register their designs will inhibit the fashion market from naturally developing creative competition. My central message will be that a bill like this, if enacted into law, will ultimately derail the fast-paced, ultra-volatile ideals upon which the fashion industry has been built, therefore destroying growth and innovation in fashion.

 

Due to the volatile nature of the fashion industry’s market, lack of copyright protection through support for a “cooperative innovation” model allows figures in the industry to compete with one another while maximizing profit. A “fundamental timing problem” is at the heart of the fashion market, which dictates that the next major trend is more often than not incredibly profitable, but this trend is only ready for purchase by the time it has already become irrelevant. Cooperative innovation helps solve this fundamental timing problem. With cooperative innovation, producers enjoy incomplete control of their creative property, allowing some imitation and maximum growth and profitability at all levels of the fashion industry and fashion apparel segments. The method therefore supports positive but limited levels of imitation, lending insurance to the designers who constantly face risky investments in the unpredictable fashion industry. Therefore risk for both original and imitating designers is minimized, while opportunity for profit and expansion is maximized.

 

This article, which introduces the idea of cooperative innovation, supports my thesis that a lenient or nonexistent copyright law is necessary for fashion to continue to expand and develop as an industry. By analyzing the market characteristics unique to the fashion industry – including the different fashion apparel segments, lead times, demand uncertainty, and so on – the article poses a well-documented argument in support of the continued limited protection for original design producers. The meticulous diagrams provide a decidedly more business-oriented analysis of the fashion market and the fashion copyright debate, which will help me analyze the globalization and economic themes in my thesis.

 

This testimony was given by David Wolfe, creative director of The Doneger Group, a marketing firm that analyzes trends in the fashion industry, to the House of Representatives on July 27, 2006. Wolfe concluded that it would be a “mistake” to protect fashion designs with copyright law, in this case H.R. 5055, because the fashion industry in America has thrived specifically because of the lack of protection for fashion designs. Wolfe reasons that as copyright law protects originality, and no fashion design is created without influences and inspirations, it is virtually impossible to determine whether a fashion design is truly original and therefore whether it can be protected by copyright law. The speed of the development of trends in the fashion market would be completely destroyed by a copyright law, therefore hindering creativity and crushing economic profitability in the fashion industry.

 

Rather than proposing solely that a fashion copyright law would have negative consequences, Wolfe’s testimony illustrates exactly how not protecting fashion designs ensures a successful future, both creatively and profitably, for the fashion industry. This testimony in relation to the proposed bill to provide protection for fashion design also provides the argument that copyright law for fashion designs is actually “antiethical". A copyright law protecting fashion designs is antiethical because it hinders the process of creating new fashion apparel, which is actually based on the consumption of previous works and is therefore not completely original. This position and its individual arguments posed by Wolfe complement my thesis with a unique perspective for the opposition of legal protection for fashion designs.

 

Fashion designs in the United States are widely unprotected by intellectual property rights. Knockoff designers often recreate the couture masterpieces of major design houses without paying royalties and without the labor involved in producing the high-end fashion designs. Though recently multiple bills have been introduced into Congress that would grant three years of protection for the actual designs, many argue that this protection is actually damaging to the fashion industry that thrives on competitive creativity. On the one hand, no protective measures for fashion design would be extensive enough to completely prohibit design piracy. Ultimately, however, the damage caused by a fashion copyright law to the entire fashion industry would far outweigh any possible benefits that may be enjoyed by high-end fashion designers. This theory can also be applied to other thriving industries with unprotected intellectual property.

 

 

This article is extremely useful as evidence for my thesis in that it provides both support and opposition for the fashion copyright argument, concluding that protection of something as abstract as a fashion design would ultimately be detrimental to the industry as a whole. The article is particularly interesting because of its extension of the same reasoning into other industries that also do not have intellectual property protection. The argument puts in perspective exactly how a copyright law would affect not just one industry, but would inhibit creativity in other industries as well. This aspect adds an extra layer of depth to the argument that supports my overarching thesis.

 

 

This critique adds insight to the argument posed by “The Piracy Paradox” by refuting its claim that innovation can be promoted and sustained without intellectual property protection, specifically within the fashion industry. Two statements are posed to support the author's argument for the need for fashion design copyright. The first argues that increased property rights result in greater efforts to innovate, which can be seen in the case of the creation of private property rights by the Fashion Originators’ Guild of America. The second proposes that a fashion copyright law would create increased value towards the customers of high-end designers by limiting the low-end firms that copy these original designs.

 

I will contest this article with my thesis and utilize other research to prove that the argument posed by this article would indeed create an obstacle to the very composition of the fashion industry. On the surface, the two points utilized by this article to counter “The Piracy Paradox” are sensible, but by researching the behavior of the fashion market, my thesis will show that the implementation of these arguments would be detrimental to innovation.

Thesis: Despite the efforts of international fashion houses and influential organizations like the CFDA, fashion designs must continue to be deliberately excluded by copyright law in order to ensure the ongoing globalization of the fashion industry, thereby promoting innovative competition, cultural development, and economic benefit.

 

The Council of Fashion Designers of America released this article on its website in support of the Design Piracy Prohibition Act (S 1957), introduced by Senators Schumer, Hutchinson and Feinstein on August 2, 2008. The article highlights those in attendance at a consequent press conference hosted by Senator Schumer in New York City’s Fashion District, which was held to gain proponents of the bill. According to the CFDA, a not-for-profit trade organization of over 300 American fashion designers, the Design Piracy Prohibition Act seeks to halt the production and distribution of duplicate versions of high-fashion designs, a practice that has “devalued the original by the knockoff’s ubiquity, poor quality, or speed at which it reaches the consumer.” The CFDA outlines the Design Piracy Prohibition Act’s two main goals as protecting established and new designers, and preserving intellectual property.

 

This article is extremely useful for the development of my thesis because it represents major fashion designers in the United States, where very few laws exist to protect fashion designs. I will counter the argument in support of the Design Piracy Prohibition ACt posed by the article with my thesis which states that fashion designs must continue to be unprotected by copyright law in order to ensure the continuing globalization of the fashion industry. The globalization of this market ensures the progression of innovation and creation on all levels of the fashion industry.

Fashion designs in the United States are widely unprotected by intellectual property rights. Knockoff designers often recreate the couture creations of major design houses without paying royalties and without the labor involved in imagining the high-end fashion designs. Though recently multiple bills have been introduced into Congress that would grant three years of protection for the actual designs, many argue that this protection is actually damaging to the industry that thrives on competitive creativity. On the one hand, no protective measures for fashion design would be extensive enough to completely prohibit design piracy. The damage caused by a fashion copyright law would far outweigh any possible benefits for the fashion industry and all other industries with intellectual property.

 

This article is extremely useful as evidence for my thesis in that it provides both support and opposition for the fashion copyright argument, concluding that protection of something as abstract as a fashion design would ultimately be detrimental. The article extends the same reasoning to other industries that also do not have intellectual property protection, concluding that applying copyright law to one industry would inhibit creativity in other industries as well, which adds an extra layer of depth to the argument that supports my overarching thesis.

 

This article introduces another argument to support the one that states that pirates can actually be beneficial to the original producers of fashion products. The authors render that pirates are not merely copiers. On the contrary, they often inspire high-end fashion designers in new directions. Specifically, the article cites the example of Fred Nuovo, the designer of the Nokia luxury brand, recognizing his idea of creating Vertu came from pirates who were selling counterfeit Nokia phones with diamonds on them. In addition, the article describes an incident in which Coco Chanel, a high-end fashion designer, used raffia in her collection after her press secretary bought a counterfeit Coco Chanel knockoff outfit that had included raffia trim, a detail the original lacked. If this were to be true, the usually pirated firms are the ones who are pirating from the so-called "pirates." In the conclusion, the article admits that the overall impact on social welfare remains ambiguous and calls for further research into this topic as a whole.

This article adds another argument that is important for my topic: that often producers not only gain financial benefits from pirates, but that they also often take creative ideas and details from counterfeited products. In addition, I appreciate the way that the author notes that the beneficial gains from pirating are still, at this point, ambiguous and that further research is needed to be conducted in order to fully understand the implications piracy has on fashion designers and their revenue of sales.

 

 

This article recognizes that fashion design does not currently receive protection under U.S. Copyright law. H.R. 2033, the "Design Piracy Prohibition Act" would amend Chapter 13 of the U.S. Copyright Act, which now protects the designs of vessel hulls. This article analyzes the amendments that H.R. 2033 would make to Chapter 13 of the Copyright Act, including granting fashion designs a three-year term of protection, based on registration with the U.S. Copyright Office. Lastly, it summarizes arguments both in favor of and against giving protection to fashion designs. In the article, the author points to the fact that those against protection of fashion designs fail to recognize fashion as an artistic form of creativity. They simply view fashion and clothing as utilitarian. In addition, those in favor of protection highlight how easily runway photographs can be accessed from the Internet, making it easy to be copied. They also say that young designers specifically have difficulty in establishing themselves because of how easily designs are copied, and they point to the protection granted to fashion designs in other areas of the world.

            This article is important for my topic because it complicates my argument that pirates actually benefit the original designers. In this article the arguments made against my thesis are clearly stipulated, which I will include in my paper in order to acknowledge the opposing argument. This article is also important because of the way that it analyzes the impending "Design Piracy Prohibition Act" and its implications for future fashion designs.

 

 

This article's overall argument is that although counterfeiting is a criminal activity, the act of counterfeiting is not always damaging to brands and can actually work to a brand's advantage. The author lists numerous ways in which this is accomplished, such as that it can increase a brand's awareness and desirability in the public's eye. A new way of looking at how counterfeited products help the original is by analyzing who is purchasing the counterfeits. The article argues that the people who buy the fake products are not financially able to buy the original, and that if they were, they would be the first in line to purchase the original. In this way, the increased brand exposure only helps to entice those who are able to buy the original. The counterfeit proves as no competition for the original. Another new piece of argumentation is that it closes off competition. The author notes that high priced branded goods encourage competition at slightly lower prices. Then, the "fake" products are priced as significantly lower prices. Thus, the competition is squeezed out because it is prices out of the top market by the original brand and is unable to compete with the very low prices of counterfeited products.

            I chose this article to use for my final project because it clearly explains that way in which counterfeited products eliminate the real competition for the original higher priced products. This adds a new dimension to my argument because previous articles did not deal with the actual competition of the original producers of fashion goods in the way that this author does.

 

 

This article argues against the thinking enforced by the incentive thesis, which argues for strict enforcement of intellectual property rights against piracy, or imitation. According to this theory, if the original producers are not protected, they will lose the incentive to produce new items. The article states that counterfeiting in fact does not always diminish the original producers' innovation incentives. The author gives two reasons to back up his argument. First, the introduction of copies will increase the amount of money that the elite are willing to pay for the original fashion product. In addition, the fact that a product is being copied will increase the desirability of the product to the non-elite consumers. Because of this increase in perceived desirability, such consumers will believe that the status benefits acquired from owning the product make the product worthy of a purchase. Thus, not only will the elite increase their purchasing of the item, but the non-elite consumers will also more often buy the fashion good. Both increase the producer's revenues on sales of the original, despite the counterfeiting.

This article is important for my topic because it argues against the need for protection against counterfeit products. Here, the consumer is not only the one being aided by the pirates, but the producer, too, is gaining more benefits, in the form of an increase in the revenue of sales on a fashion good, with the appearance of counterfeited products. I think it is important to note that the author specifies the counterfeiting is "imperfect," which increases the desirability of the product, both for the elite and non-elite consumers.

 

 

This article questions why the fashion industry has failed to secure U.S. copyright protection for its designs, despite the rampant view that piracy is an extremely fatal and potentially destructive threat to the drive to engage in creative pursuits. It tracks the film, music, software, and publishing industries, illustrating that such industries have used this argument for demanding increased legal protection. On the other hand, fashion firms and designers have not. The author gives several reasons for his argument. First, the article states that even original producers are sometimes copiers themselves. Different designers at different times set the trends for a season, and all engage in copying at some point. Also, because of the fashion industry's quick design cycle, a firm's position as either copier or originator is constantly and very swiftly changing. Furthermore, the article notes that the fashion industry is dependent on whether or not the consumer is aware of the newest trends. Thus, widespread copying results in some coherence. There is always a range of new designs produced each season, and the counterfeited products make clear to the consumers was is "trendy" at the time.

            This article is important for my overall topic because it gives claim to the argument that lack of protection rights for top designers are actually increasing the sales for these designers' products. Without counterfeiting, the American public will not be aware of what is "trendy," which would result in greater distribution of sales, but less concentrated sales for a particular design. Also, it gives substance to the argument that all designers borrow from one another at some point, for the industry is constantly evolving.

 

 

This article explores the relationship between creativity and the community at large. The authors use as their example of a creative industry the fashion industry, and shows the ways that creativity should not be considered only as a matter of individual creativity. Instead, it should involve a "conversation" between individuals and larger communities of people and traditions. In this way, fashion takes many of its stylistic elements from the past. The article gives examples of taking elements from the Polynesian islands, urban street corners, stock-car races, and bowling alleys, and then transforming them into new trends. The evolution of fashion is described, beginning with haute couture in Paris, Milan, and New York that was the fountainhead of new styles, to the introduction of women in the work world, which resulted in a waning of the cultural appeal of high fashion. Then, celebrities and movie stars took the place of elite fashion shows, making fashion a more year-round passion than before. Lastly, the article recognizes the problem of "originality," and denotes the lineage of high fashion. It states that fashion shows the ways in which creativity involves building upon the past and sharing inspiration. Because of this, creativity requires freedom, in the authors opinion. The most innovative work comes from the artful recombination of existing work.

            This article is important for my topic because it examines the issue at large from a less monetary way of looking at things. The article does not discuss whether or not the designers will be hurt financially, but argues that in order for the creativity of designers to flourish, they must have the freedom to borrow inspiration from the community, others, and the past.

 

 

This Congressional testimony came from Narciso Rodriguez, who speaks on behalf of the Council of Fashion Designers of America, a not-for-profit trade association of America's fashion and accessory designers. First, he speaks about how frequently fashion designs are being copied. Then, he relates his journey from being the only son of Cuban immigrants, growing up in Newark, NJ, and finally becoming a fashion designer. This journey, he tells, took training, hard work, and financial capital. Then, he attempts to argue that fashion designs are not utilitarian in nature, but that they are works of art, citing specific designers and giving examples of their work. He then covers certain specifics of the HR 2033. For example, no previous designs would be protected by the bill; thus, past designs can be used for inspiration. Also, he states that the market will not be drained of reasonably priced items. Furthermore, the consumers of pirated products are not to be punished. As a whole, the speaker urges that the protection bill for fashion designs be passed.

            This is important for my topic because it complicates my thesis. If, as many of my sources argue, pirates really do benefit the producer of the original, I wonder why so many producers are asking for protection of their products. This testimony gives voice to one of these producers, a man who is responsible for original fashion designs and feels as though pirates and copiers are hurting him financially.

 

 

This article is the testimony of Steve Maimon, co-owner of Stony Apparel. In the testimony, Maimon speaks out against the Design Piracy Prohibition Act. According to Maimon, the fashion industry has developed into a successful industry without the help of any copyright laws; thus, in his opinion, there is no need to enact protection now. He states that the laws will reduce creativity and hurt the consumers. In addition, firms like his own will be hurt since retailers will return any products claimed to be infringing, even if they are falsely claimed. Even as the fashion industry is one that daily deals with risks, with the enactment of this protection bill, even more risks will be present for manufactures and retailers, in the form of numerous new lawsuits. Furthermore, Maimon foresees an increase in prices of products since designers will need to hire lawyers to help fight against lawsuits. In Maimon's view, only lawyers will benefit from the protection of fashion designs.

            I think this article is important because it shows an opposing testimony to the one I have already cited. Whereas Rodriguez was arguing for the protection acts, Maimon is clearly fighting to eliminate the possibility of the protection for designs. As a primary source, the concerns and fears are legitimate. I also think that because he does not only cite the negative consequences that the bill would have for retailers as himself, his argument is more effective. Instead, he notes that the bill would be detrimental for consumers, designers, and retailers. In addition, he is speaking from experience, as one who directly would be affected by the passing of the bill, which make his claims more passionate and heart-felt.

 

 

This article provides for the reader the pros and cons of the fashion copyright argument, eventually arguing against the endorsement of such laws. The author initially admits that piracy causes $12 billion of loss in the fashion industry annually, and even in Japan and in the European Union fashion designs fall within the scope of current intellectual property protections. However, despite the wishes and demands of the Council of Fashion Designers of America, the author warns that enactment of fashion copyright laws should be approached with caution. Furthermore, she goes on to say that "meaningful protection" is impossible to maintain. Because of the difficulty that exists in defining the terms of fashion, fashion design will be difficult to protect. In addition, such an enactment will cause conflicts and more controversy in Congress. Not only will there be a plethora of fashion copyright cases, but other industries, which are not currently protected, will likely bombard Congress asking for similar protection. According to this article, any benefits that could result from design protection would, in the end, be eliminated due to the time and costliness of court decision on piracy.

            This source proved beneficial for my purposes because of the different angle Hendrick went at looking at the problems with piracy and fashion design. Unlike my other sources, she used a very legalistic method of finding evidence against the benefits of enacting the fashion copyright laws. By analyzing these laws, she contends that they are extremely ineffective at solving the issues surrounding the copyright and fashion industry. Another negative aspect is illuminated for me: the time and costliness of court decisions that would inevitably result.

 

In this short piece, reporter Bruno Navarro interviews Scott Schuman, creator of The Sartorialist, a popular New York City-based fashion blog with an aesthetic that generally centers on classically dressed adults. Schuman speaks briefly of his interest in fashion, generated as a young boy reading GQ and furthered during his career as a showroom manager at Valentino (which ended when he decided to become a stay-at-home dad). Unlikely many other bloggers, Schuman knows nothing of journalism – a fact which Navarro praises, arguing that it is The Sartorialist’s simple style and positive tone that have led to its immeasurable success. Furthermore, unlike the proliferation of blogs whose witty, catty tone takes a stab at some of fashion’s biggest names, Schuman provides little text, and generally lets the photos speak for themselves, choosing only to add text when he wants to point out a specific detail, like a hemline or collar. Schuman’s work makes evident his great knowledge and love of fashion, and has gained him jobs taking photographs for Esquire Magazine and Style.com.

Although The Sartorialist is an extremely popular fashion blog (Technorati ranks it number 361 in the worldwide blogosphere, as of March 7, 2007), Navarro downplays Schuman’s power as a foreseer of the cool. Instead, Schuman emphasize personal details of Schuman’s life (he grew up in Indiana and recently left the industry to become a stay-at-home dad) and notes that he has no journalism experience and rejects the catty critiques favored by many other fashion insiders, thus painting him instead as a regular guy whose photos speak to the greater public. The underlying message seems almost a reiteration of the Great American Dream, in which the Internet provides the new means for achieving bigshot status in whatever industry you choose, as long as you’re sincere and love your art.

Clearly, Navarro is a bit overly optimistic. First of all, anyone who has ever visited The Sartorialist will tell you right away that Schuman isn’t just an ordinary guy. He has a keen eye for high fashion and tends to photograph people wearing outfits that cost upwards of $1,000. Second, his discussion of colors and details is complete and impressive, as he points out features of a particular outfit that would go unnoticed to the untrained eye. Navarro also downplays the fact that Schuman worked for Valentino, one of the premier Italian designers in haute culture – and a fact which posits Schuman as more of a fashion insider than a regular guy. Furthermore, while Navarro’s celebrates Schuman’s success as a success of the every man, he fails to mention the almost 300,000 blog posts tagged as “fashion” on Technorati, which do not receive nearly the number of pageviews as The Sartorialist and have not led to such opportunities.

Yet overall, the thrust of Navarro’s article seems right on – the world of fashion blogging clearly does allow for people outside the fashion industry to comment on and influence what is popular – and in that respect, Schuman should act as role model for all aspiring fashion bloggers.

Here, Riekert adopts Gladwell’s term to refer to street-style fashion bloggers whose keen sense of fashion results in documentation of the some of globe’s newest and funkiest looks featured on the web for all to see. As a result, fashion industry executives, rather than hiring street teams to seek out “cool” looks, are turning to fashion bloggers in order to ascertain what is in style. This occurrence is widespread and Riekert identifies several companies whose soul purpose is to sift through fashion blogs in the hope of determining the next big thing.

Riekert argues that while these blogs provide a valuable service to the fashion industry, they also democratize the act of coolhunting. “In the end, the price the companies pay for this 'free' information is that they don't have exclusivity,” she explains. Yet coolhunting does not just apply to the fashion industry; indeed, corporations focused on almost any aspect of culture or technology frequently turn to blogs in order to ascertain what the next big trend will be. Like Gladwell’s version of coolhunting, online coolhunting is valuable because it provides up-to-date and cutting-edge information. Furthermore, the interactivity of blogs helps generate further dialogue, as readers comment on posts and debate trends. In the end, ideas debated and favored on the web can be translated into real products created by the industries for the marketplace.

In general, Riekert combines interviews with bloggers and media companies and web statistics to form a solid argument, yet her adoption of the term “coolhunter” to refer to fashion bloggers seems to deviate slightly from Gladwell’s original designation. Unlike the coolhunters of the 1990s, today’s coolhunters are not tied to industry insiders but work for themselves. Rather than reporting their finders directly to a fashion corporation, they post their findings online. Thus, fashion industry experts must go through an extra step in order to access the information that the coolhunters have amassed. This extra step is crucial because it grants both industry insiders and the general public the same information at the same time. Thus, readers are providing feedback in the form of comments and discussion at the same time the fashion industries are designing their new lines. The result is a line of fashion directly influenced by popular opinion.

Yet while many fashions captured by fashion bloggers end up being adapted by the masses, just as many of these fashions are ridiculed or rejected. Although Riekert never explicitly states that fashion blogs make the so-called “cool” subjects featured on blogs susceptible to the (sometimes cruel) opinions of the greater blog-reading public, she ends her article with the mention of a German blogger whose blog features tee-shirts with faux underarm hair – a trend which will likely (or at least hopefully) be rejected by the masses. Extrapolating, one can glean that this more accessible form of coolhunting also strips the cool of some of their power to dictate the fashions, as any new trends must be approved by the masses before they are translated into profitable market goods.

In this article, Zamiatin explores why fashion blogs have attracted so many readers in the past few months. She attributes their growing popularity to two major factors: a sense of immediacy (blogs respond to what is happening currently, and provide updates more frequently than magazines, which are generally issued once a month) and a candid, often humorous writing style not found in fashion magazines. She briefly discusses the recent efforts among fashion bloggers, such as the editors of Coutorture, an online fashion blogging community, to bring together all fashion blogs in one place where users can find them all quickly and easily. Such a community would help democratize fashion by allowing for a multiplicity of voices and allowing readers to leave feedback.

Zamiatin comments that some of the more popular fashion blogs concern themselves with celebrity fashion, thus treading on ground traditionally covered by the mainstream fashion press. However, Zamiatin does not think that fashion blogs will eclipse traditional media such as magazines – instead, will they supplement mainstream media by providing new, current information for fans to consume and discuss.

Zamiatin’s discussion of immediacy and style as two distinguishing features of fashion blogs can be widened to describe much user-generated content created in today’s participatory internet culture: YouTube videos are known for their quick stream-times and often satiric content while web comics such as Achewood or Toothpaste for Dinner are updated daily and offer ridiculous, humorous content. A fashion blog community, such as Coutorture or ShareYourLook.com (see entry) would act as a sort of YouTube for the fashion industry, allowing the best blogs to rise to the top and gain the most pageviews, thus placing fashion even further into the hands of the masses.

Zamiatin is probably correct in arguing that blogs will not displace traditional fashion reporting, but she misses one of the more obvious reasons why this is so: the advantage of an actual (as opposed to virtual) magazine is that you can roll it up, toss it into a backpack and read it in the park or on the beach. While Sidekicks and other devices that allow users to access their email remotely are growing more and more popular, there is something about curling up with a magazine that can not be replicated with a tiny Sidekick screen.

Furthermore, while Zamiatin argues that fashion blogs democratize fashion culture, one could also argue that by focusing on celebrities, many blogs actually reinforce the cultural distance between celebrities and the greater reading public. Instead, it seems more likely that street style blogs, who random stylish strangers, have the potential to democratize fashion by portraying it as something exemplified by ordinary people.

The memoirs of industry insider Steven Cojocaru, Red Carpet Diaries traces Steven’s rise from a blurb writer for People to the host of the Oscar Review and the Today Show’s fashion correspondent. Cojocaru’s voice is varied and descriptive, shifting quickly from bitingly critical to blissfully in awe, depending on the fashion or fashionista at hand. A no-nonsense, trend-obsessed expert, Cojocaru flippantly throws out the names of top designers and galas, touting each celebrity run-in as just another day in his exciting and dramatic life. Style-conscious from birth, Cojocaru developed an interest in fashion from his mother, an Elizabeth Taylor look-alike, while growing up in Canada. Yet his high style helped him rise to the top, where he spends his free time hanging out with celebrities and providing viscous commentary on what others are wearing.

An artifact arising from popular culture, Cojocaru’s book is aimed at fashion lovers and fans of Cojocaru’s (or Cojo, as he is often called) television segment. The result is the snarky combination of affect and criticism that fans have come to love. In adopting such a voice however, Cojo portrays the fashion world as an exciting exotic place only accessible to a chosen elite. While speaking (ostensibly) to the greater reading public, Cojo still maintains a distance from his readers, as one with superior knowledge and experience. This approach is strikingly different from that adopted by Navarro in his interview with fashion blogger Scott Schuman. Navarro portrays Schuman as a regular guy, comparable to any of his readers, yet Cojocaru asserts earlier on in his book that, “I was ‘different’ from the get-go…I was convinced that I was Princess Grace and Prince Rainier’s love child” (6). Through such choices, Cojocaru chooses to distinguish himself from his readers, rather than relate to them.

Published in 2003, Cojo’s book now seems trite and outdated. As the democratization of blogging allows both fashion insiders and experienced coolhunters to seek out cutting edge news and trends via the blogosphere, “confessional” accounts such as Cojo’s seem self-important and irrelevant. Why read the boastings of an industry insider when you too can become an insider, by browsing the blogs for free from your own home? Cojo’s knowledge is no longer privileged, and as a result, it is less valuable. Surrounded by a world of voices commenting on fashion and celebrities, Cojocaru’s voice blends in with hundreds of others commenting on the same people and trends.

Reviews of Cojo’s book were mixed; posted reader responses on Amazon.com alternate between praising Cojo’s witty style and berating the book as trivial gossip. Even among the star’s fans, it seems that the democratization of fashion blogging has diminished the power of industry insiders such as Cojo, making them appear self-important and boring as a result.

This article examines how online fashion bloggers are gaining more and more credibility with industry insiders who are attracted to their large numbers of readers and hope to win them over. As a result, these bloggers are granted advertising deals with major industries and are greeted with open access to fashion shows and events formerly accessible to major media companies only. Top-ranking blogs can also be sold for considerable amounts of money, especially among media companies looking to strike it rich in the world of the elite.

Bloggers also wield considerable power because their snarky, critical comments leave designers fearing an online trashing. Other designers seek out bloggers in the hope of gaining extra publicity. Finally, many designers and media corporations recruit bloggers to come and work for them, hoping that bloggers’ keen sense of style will give their company a coolness boost.  Fashion-blogging represents a quickly growing industry, with revenues only expected to rise as online advertising becomes increasingly popular. 

A well-researched article, Dodes incorporates comments from several top fashion executives and photo-bloggers with statistics from Technorati (a blog tracker) and BlogAds (an agency responsible for placing advertisements on top-raking blogs.) While the article uses the data to draw reasonable conclusions, it neglects to consider differences between blogs that cover street style versus those that cover couture or celebrity styles. Although Dodes’s failure to differentiate between different types of blogs makes the article appear as it if speaks for them all, when analyzed closely, Dodes seems to focus only on the latter two types. Thus, while she draws a connection between fashion bloggers whose posts about couture and celebrity style may gain them insider status, she does not mention street-style bloggers and never suggests that the writers of such blogs might have a different relationship with the fashion industry.

Nevertheless, the implications of this article are enormous. First of all, Dodes credits fashion bloggers with making the secrets of the fashion world available to anyone who cares to seek them out via the internet. It also posits fashion bloggers as independent and increasingly powerful experts, almost akin to a ruling aristocracy, who are not tied to any one company or designer, but who can praise or criticize different labels as they see fit, and who have commanded the attention of both media companies and fashion industry bigwigs. Finally, Dodes posits a capitalist superstructure (not surprising for WSJ) which maintains that control ultimately lies with whoever influences the masses, and that bloggers succeed because they are more in touch with reading audiences (and thus more likely to influence their liking of a particular item or design) than the industries themselves.

The Hot or Not of the fashion blogosphere, ShareYourLook allows users to upload photos of themselves in their favorite outfits and then asks other users to rate their style on a scale of 1 to 5. The site also contains a slew of web 2.0 features that savvy Internet users have undoubtedly become accustomed with – users can email photos, comment on them, tag them or filter them based on style or price. In addition, each user has a homepage, which includes recent fashion photos and personal information. Fun features, such as “The Wall” will randomly generate 20 photos posted on the site, and a “News” page contains links to a variety of blogs sorted into categories: fashion, shopping, celebrities, beauty.

ShareYourLook is an important development for the online fashion community because it allows anyone with a camera and an internet connection to partake in the creating and judging of fashion trends. While street style blogs capture ordinary fashionable people, ShareYourLook contains photos from people across the globe, many of whom may live in areas where fashion bloggers never venture or whose simple styles are unlikely to catch the eye of bloggers seeking unusual, cutting-edge trends. ShareYourLook is unique in that it features ordinary everyday looks alongside more cutting edge looks, and asks users to comment on both. While many of the top-rated looks feature trendy, “high style” items, common items are highly ranked as well, such as skinny jeans and black rain boots. By placing new and unusual items alongside already popular favorites, ShareYourLook’s top-rated looks represent a more accurate compilation of what fashion fans actually find stylish, drawn from a larger pool of varying styles. Like YouTube, the top rated looks on ShareYourLook are those that have received high ratings from multiple users; thus, like YouTube, ShareYourLook provides the tools for a truly democratic fashion culture.

Yet while ShareYourLook provides the tools for fashion democratization, as of now, it does not have enough users to truly represent anything other than the opinions of site-users. While the main page boasts that the site has users in 54 countries, numbers still seem low: the most-viewed look only has 1398 views, as of 11:10 p.m. on March 7, 2007, compared to the top video on YouTube, which has 43,546,227 views as of the same time. Technorati only lists three incoming links to the site, making it relatively insubstantial in the current world of fashion blogging. Even so, ShareYourLook could be the future of fashion blogging – thus democratizing the tools of culture even more.

This project seeks to explore how fashion blogging has democratized the fashion industry by granting both fashion fans and the fashion industry access to the same information at the same time and by allowing fans to adopt and modify trends introducted online.

As I am getting older, my affinity for shoes and bags is growing with my years. It is not necessarily the name, but the style and the feel, the look of bags and shoes that draw me to spend more and more on fashion. I spend time flipping through catalogues and websites, walking through stores, just appreciating the things I will never own for the financial burden of a shoe and bag obsession has caused a dip in my credit at a young age. However, the abundance of knock-off's for name brands, being sold at much more affordable prices, pose an obvious threat to the fashion aesthete. Just because they look the same, are they same? Who would know? Is the quality the same? The color? Because one brand creates a cute patent leather pump with a rounded toe, and soon after another is selling a shockingly similar shoe, has there been an instance of fashion fraud? Where are the fashion police, the crusaders of all things good and just? Who says what can be determined as having artistic integrity and or intellectual creativity? The moment an idea comes to one's mind, should they file for some sort of protection? The thought process and intellectual property law forever obscure the lines for all concerned about legal protection. Regardless of the medium, intellectual property law is a dynamic field and asks its noble followers to help untangle the messy web of ambiguity. Where do our thoughts and individual creativity meet at the crossroads of copyright and protection? In the fashion industry, one of the world's fastest growing entities as well as large supplier of creative material, intellectual property law and copyright are a new development in the protection of designs and details, sweaters and stitching. Whether in sketch form or in skirt, from the drawing board to the boardroom, fashion copyright is complicated. Can it be protected? When does an instance of 'substantial similarity' become imitation or worse, chargeable theft? Can the line be drawn? If copyright law is extended to include protection for fashion design, will the world of fashion be forever affected? The blurriness in the fashion design industry resulting from the almost counterintuitive cycle of fashion profits spurred by piracy makes it incredibly difficult to decide. Ultimately, copyright protection for fashion design is necessary and without protection, piracy will continue to hinder the progress of creativity and production as well as cause a discontinuity in what can be considered organic artistic thought.

Since the 1920's fashion has been copied in one form or another but it is not until recently that designers are taking a stand and trying to seek protection for their hard work. But what form of protection is available for their fashion design? Copyright, trademark, or patent laws? These are all methods in which parts of fashion design are protected but none of these intellecutal property laws grant protection for an entire fashion design. If laws are changed to include fashion design protection which method would provide the best protection? Also, how would this affect those who have based their career on "knockoffs"? Is there one law which provides a better form of protection or should the United States adopt laws currently used by France or the United Kingdom? Some believe that if fashion designs are protected by copyright laws then this will alleviate the uncertainty in the fashion industry of what is right and wrong. Copyright currently does not protect fashion but the proposition to change Chapter 13 Article 17 of the U.S. Code to protect fashion designs has the ability to change the fashion industry.

Mencken, Jennifer. A Design for the Copyright of Fashion. Diss. Boston College of Law 1997. Online. Available: (http://www.bc.edu/bc_org/avp/law/st_org/iptf/articles/content/1997121201.html).

    This article discusses the historical reasons that there is no copyright for fashion designs. It explains clothing in terms of "useful articles without any copyrightable elements", while also discussing the possibility of a fashion monopoly. Mencken discusses how fashion is protected; through trademarks and sometimes common law, as well as fabric copyright protection. However, after setting up these historical views on the subject, Mencken negates many. She claims there is a "need for revision" of stances on fashion copyrightablity, suggesting the Polakovic Model. The economic effects of fashion copyright, or a lack thereof, are outlined and discussed. Finally, Mencken declares that the public would not be hurt by copyrightable fashion, only the pirate.

   This is an extremely in-depth look at the past and present views on fashion copyrightability. Mencken's text complicates my own thesis in many ways. She discusses the subject in terms of Europe, where "designers understand that there is a certain level of inspiration and similar themes in each season, and have not been suing each other rampantly over infringement." Because of this article, I realize that I need to do more research into the EU before making assumptions as to what effects fashion copyright law will have on the United States.

 

United States. Cong. House of Representatives. 109th Congress, 1st Session. Stop Counterfeiting in Manufactured Goods Act [introduced in the U.S. House of Representatives; 4 January 2006].

    This bill states that Congress is losing tax dollars,  jobs, and up to two billion dollars annually due to counterfeited goods. It proposes that all possibly counterfeited goods be destroyed, and that anyone found guilty of profiting from counterfeited goods must immediately turn all proceeds to the government. It discusses trademarks and states that it is illegal to put such marks on counterfeited goods, even if the person doing so is unaware of the mark's registration.

    This is important information in proving that trademark is necessary for fashion copyright, and that motions have been passed protecting designers' rights in this sense. It will be very important for me to make a distinction between wrongs done to fashion designers by illegal use of trademarks and those they claim are done by lack of copyright protection. This shows very clearly that the entire nation is harmed by misuse of trademarks. I imagine it will be quite a deal harder for anyone to find such clear data on how fashion copyright affects the nation.

 

United States. Cong. House of Representatives. 109th Congress, 2nd Session. To Amend title 17, United States Code, to provide protection for fashion design [introduced in the U.S. House of Representatives; 30 March 2006].

 

This is the bill proposed to amend Title 17 in order to provide copyright protection for fashion designs. It was introduced in the House of Representatives on March 30, 2006 by a Mr. Goodlatte. It has been referred to the Committee on the Judiciary. H.R. 5055 seeks to include fashion design under the category of designs protected. The bill states that fashion design can be under copyright for three years and changes minor details in the section about infringement, as well as including alterations for other sections.

H.R. 5055 is central to my thesis, and is what my paper will argue against. The recent date on the bill demonstrates that this is a current topic over which there is much debate and information. Definitions for terms such as “design” and “apparel” provide me with a useful point of reference on these otherwise elusive words.

My paper will discuss the recent bill introduced which, if passed, will make fashion designs subject to copyright protection for up to three years. While many support this idea, in truth it will create a monopoly of the fashion industry. There will be less for buyers to choose from, and prices will be high. Complications may arise due to the near-impossibility of determining what is original in the fashion world. Some have even argued that it is this current lack of copyright protection which allows the business to thrive. It is true that designers need legal protection from those attempting to pass of cheap goods as designer ones, but this protection is already provided by trademarks and is a different matter entirely.

The emergence of trade dress article discusses the importance of protecting fashion designs by means of trademark protection.  Design piracy also known as “knocking off” is extremely prevalent in the fashion industry and as a result, actions need to be taken in order to protect those who create the original fashion designs.  Copyright laws have been the major focus for trying to protect fashion designs; however, this article explains why trademark is the best means of protection.  Copyright laws fail to protect the designers’ overall concept and most articles cannot be protected by copyright laws because they are useful articles.  Fashion needs to be protected in order to ensure the continued growth of new and innovative designs.  The fashion industry is a billion dollar industry but if there are not designers who are willing to spend their time creating new designs just to have them stolen, then the fashion industry will fail to create new designs.  Fashion is considered to be a form of artistic expression by some, if this is true, then why is it not considered to be under the same laws as artwork or architectural works which were recently added to the copyright act.  The article spends the first half discussing the failures of copyright laws in protecting fashion and it goes on to propose an alternate solution, trade dress.  Trade dress is a “hybrid of trademark and unfair competition law.”  “A product’s trade dress is the overall image used to present it to purchasers.”  Trade dress came about as a response to the Lanham Act which requires that there must be proof of secondary meaning and that the product is not similar to another product.  Two Pesos vs. Taco Cabana is presented as an example of a successful protection of trade dress which was used to protect the overall image and feel of a restaurant including the uniforms.  Trade dress may be the method to combat fashion design piracy in the future.  Until copyright laws are changed to include fashion, trade dress is the better way for designers to prove infringement.  The importance of this article to my thesis is that it goes into great detail about the importance of finding another means of protection instead of copyright law.  Instead of fashion protection through copyright, trademark might be considered to be the best form of protection, specifically trade dress.  In my paper I am trying to figure out the best method of protection for fashion designs between copyright laws and trademark laws.  This paper gives the side of trademark and through the example of Two Pesos, does a great job of explaining the distinctiveness of trade dress.  Also, trade dress is presented as the best way to protect fashion designs as a result of it being easier for designers to prove that their designs were copied illegally. 

belongs to Fashion Design: What is the Best Way to Protect Fashion? project
tagged copyright fashion by kcoleman ...and 2 other people ...on 28-NOV-06