Should fashion really be coyrighted? For years fashion designers have drawn on inspiration from artists, paintings, nature and yes of course, other fashion designers as well. Last summer's gladiator sandals were imitations of what the Ancient Romans wore. If fashion is copyrighted it is unclear as to what will lie in the public domain and what will be protected. It is understandable that fashion designers fall prey to cheaply manufactured knock-offs that are sold at lower prices than the original products, but is the answer really fashion copyright? This paper will analyze whether fashion should be copyrighted in light of the current Acts before Congress and the economic and social impact of the issue.

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.

This source includes the Design Piracy Protection Act itself as well as a comprehensive analysis of it by the LawNexis community. They have very methodically split their argument into three parts: questioning of whether the legal community needs to step in and protect fashion designs, whether analyzing the bill and whether it is right or the issue and finally suggesting changes to the bill that would improve fashion design protection. This source is a very interesting analysis of the ongoing legal processes and it makes audiences look at the issue from a very unique point of view. It questions whether supporting this act would be indirectly supporting an industry that may be exploiting labor or has the ability of being a key player in the human rights movement. Another interesting question it raises is whether this new protection will lead to new standards of protection or simply discourage protection to ‘non traditional’ subject matter. The statement believes that the fashion industry is in a crucial place and has the ability to become a good influence in the spectrum against human trafficking. An interesting aspect of this statement is when they bring up the matter in relation with the US economy. The fashion industry can be associated with outsourcing jobs as they produce a lot of goods in countries that have cheap labor and then cheaply import them into the US. They question whether the fashion industry can show the economic impact.

Laura Tyson was the last  Dean of the London Business School, and author of the Tyson report which is the Economic Analysis of the Proposed CACP Anti-Counterfeiting and Piracy Initiative, prepared for the Coalition Against Counterfeiting and Piracy (CACP).  This source uses this report to discuss the act. To quote her, “If we are to persuade our trading partners to adopt best practices to stop the export of illicit product to market, we must show that we are implementing these practices ourselves. With the advancement of technologies and the internet, piracy and counterfeiting has been made very easy. During fashion shows, people take dozens of photos and designs, manufacture them cheaply and flood the market with them. Trademark laws make it impossible to copy the exact same design but it is legal to copy the pattern or print on an item of clothing. The Tyson report states that the fashion industry is a $350 billion dollar industry and counterfeiting causes $12 billion dollars in damages. This may be in the form of lower sales of original designs and lack of jobs. Another issue that Tyson brings up is that this Act gives privileges to an elitist group and the point of this Act should be to protect smaller designers too. They are the ones who are most affected- they can’t even establish themselves properly as they fall prey to piracy which weakens their original sales.

This source is very important for my paper for not only is it a neutral source but it also brings to light a different angle relating to the issue. The Tyson Report is crucial in understanding the economic effects of piracy and counterfeiting. A point that I will talk about in my paper is the link mentioned between human rights, outsourcing and the effects of giving protection to the fashion industry.

This source is an article that designer Diane Von Furstenburg wrote in the LA Times in July 2007. Von Furstenburg started her career back in 1972 with her famous wrap around dress. The dress which sold million, is what she is best known for and still remains an integral part of her collection. After a long break from the fashion world, she emerged on the New York fashion circuit in 1997. In 2005, she was given the lifetime achievement award by the Council of Fashion Design of America for her contribution of the fashion industry. In 2006 she was elected as the president of the CDFA and still continues to lead the organization. She begins the article by saying that she was horrified by what the editorial said about fashion piracy (it was very against it). An interesting way of looking at it, and something that someone from the fashion industry would look at, is to compare fashion designers’ protection to other artists. Von Furstenburg says that even upcoming new painters and photographers alike who are really grappling with their work and barely surviving have the privilege of having their work protected. On the other hand, new and upcoming fashion designers go out of business very easily and find it hard to establish themselves. She says that people copy designs straight off the run way, make cheap copies and then get them to stores before the originals even reach the stores. This way the higher priced original design doesn’t even sell by the time it reaches the market. Von Furstenburg argues that the United States is the only major fashion leader of the world that does not protect fashion design. The Design Piracy Prohibition Act, if enacted will provide protection designers for three years. In Europe designs are protected for twenty five years. She says that “Once enacted, this law would protect only unique and original designs, leaving absolutely everything already designed in the public domain and available to copy”. This three year protection would encourage trends and seasons in fashion. Also mass retailers such as Target and J.C. Penney hire designers and make fashion available at low prices. According to von Furstenburg the Piracy Act encourages this trend and “balances the scale” for everyone. On the other hand pirates who copy designs and sell them cheaply are allowed under US law and the people standing the street corners of NY are allowed to sell their goods. The designer ends by thanking a few California senators for their support in the bill.

This source is imperative for my paper as Diane Von Furstenburg is the president of the CFDA, making her opinion very important. My paper will argue against some of the points she raises such as the fact that only “original designs”. I will argue that it will be very hard to differentiate between “original” and “non original” designs. it would be unfortunate if the Act only ended up protecting high end fashion designers and leaving out the struggling ones who are really the ones in need of help.

 

This is an official complaint filed by Diane Von Furstenburg Studio L.P. against Target brands INC. Diane Von Furstenbug is a leading New York designer who is also the chairman of the Council of Fashion Designers of America. She started her business in 1972 and risen to fame in the fashion world since then. DVF is a brand now globally synonymous with high luxury fashion. This complaint which was filed in the District Court of New York is a complaint for Copyright infringement, unfair competition and false designation of origin, and, unlawful deceptive acts and practices. It demands a jury trial.

The statement says that DVF is the lawful owner of numerous trademark registrations and copyright registrations for its print and fabric design which are original. It says that DVF products are known worldwide for their outstanding quality and design and that their prints and signature dresses have become synonymous with their brand name. DVF products are sold in very high end stores such as Saks Fifth Avenue and Neiman Marcus and the very high levels of marketing and fashion both contribute to the millions of dollars of sales the company enjoys. DVF has runway fashion shows usually twice a year where they showcase their new designs. One such design of theirs called the ‘Spotted Frog’ dress, according to the statement is registered with the U.S. Copyright Office and is known as the “DVF Falling Spotted Frog”. The statements says that Target, the discount store brand, has produced a dress that is ‘nearly identical’ to the DVF dress. Targets dress is sold under the ‘Merona’ label and on its online store it is called the ‘Merona Animal print wrap dress’. The original dress first appeared in New York Fashion Week in its Spring 2007 Fashion Show. DVF notified Target of the infringement on January 18^th 2008 and on January 23^rd Target pulled the dress from it online store but continued to sell it at their retail stores. DVF states that the profits from this dress that target will receive are unjust and unfair and that Target carrying their dress will cause confusion in the minds of consumers. Wrap dresses have been signature to DVF and one with same print as the DVF one would be harmful to DVF’s own sales. DVF says that the unlawful, unauthorized and unlicensed copying of it dress will lead to great damage and injury to the company.

This source is useful to my paper as it exemplifies exactly what the fashion industry is fighting about. It is an original primary source and it shows the argument of a troubled designer who has fallen prey to copycats. It is beneficial to my paper as it can be used as an example where exact copying does take place.

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 source is the statement of the United States Copyright Office and was presented on July 27th 2006. It begins by summarizing what Congress has already done in order to protect design. In 1998, as part of the Digital Millennium Copyright Act, they finally took some action. The Vessel Hull Act which is codified in Chapter 13 of Title 17 offers protection to items that enjoy vessel hull designs. The Office believes that adequate protection is provided for under HR 5055. The Office goes onto explain what protection is offered under existing law, and the protection under the Vessel Hull Design Protection Act. This Act protects a ‘useful article’ or a ‘vessel hull’ which it defines as something that has a use and it not just created to ‘portray the appearance of the article. In this statement the Office says that by simply changing the definition of ‘useful article’ in the Act, protection for fashion designs can be provided.

The proposed legislation which is H.R. 5055 would give protection to fashion designs by changing a few things in chapter 13 of the Vessel Hull Act. In the definition of ‘useful article’, ‘an article of apparel’ would be included. The bill explains what would come under an ‘article of clothing’. Vessel Hull designs are given 10 years of protection but ‘articles of clothing’ would be given just 3 years of protection. The Office states that the legislation will protect haute couture designs which are sold at high prices. These designs are copied and then sold at far lower prices, hence reducing sales of the original designs. The designs change very fast and 3 years should be enough for the designer to be given enough ‘exclusivity in the field’. The statement also talks about the recovery from infringement and what designers get in damages. They conclude by saying that the Office doesn’t have enough information to decide whether fashion protection is necessary. They do see the harm that is borne by fashion designers when their work is copied but do not think there is enough evidence to prove it necessary for legislation.

This source is an excellent one for my paper. Not only is it first hand, thereby being a primary source of the Copyright Office of America, but it provide a just and fair argument. It is similar to what I am arguing: There is a need for some form of protection which the current legislation does not provide for, but there also needs to be a balance to the legislation that is brought in which will be sufficient evidence and will cover for all loop holes.

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.