Johanna BlakleyBack to OpinionJohanna Blakley

Cramping our style: Why copyright protection will hurt fashion

You may have heard the recent piece on NPR about new legislation that would finally give fashion designers ownership of their own designs. Many of you were probably thinking: geez, how unfair! Fashion apparel is at least as artistic and deserving of protection as a painting or a film or a sculpture or a short story. At long last, you thought, recognition and justice for these artists as well.

But there are good reasons why fashion designs have never received copyright protection in this country. And the fact that the Council of Fashion Designers of America has finally pulled together a politically viable bill is rather depressing news.

Although this version of the bill is far less ridiculous than the three earlier versions that were shot down in the last few years, I still think it’s a terrible mistake.

I would be the last to claim that fashion designs aren’t artful enough to deserve copyright protection, but that’s not the issue. Copyright protection is a means to an end, and that end is promoting innovation. Oddly enough, in the fashion industry, the lack of copyright protection has actually increased innovation. Any effort to curb a designer’s ability to freely sample from the history of fashion is only going to hurt the industry – artistically and economically.

Historically, fashion designers have been denied copyright protection because the courts decided long ago that utilitarian articles should not be protected by copyright. Otherwise, a handful of designers would own the seminal building blocks of our clothing. Every time a new blouse would be made, licensing fees would need to be paid to the supposed originator of that particular sleeve or collar.

Although the new bill tries to get around that problem by making the overall design, not elements of the design, protectable, once any design is owned by someone, it has a chilling effect on other designers who intend to tap into the same trend. Supporters of the bill say the copyright period for fashion designs would only be three years, but three years is an eternity in the fast-changing world of global fashion, and now that the final version of the bill has eliminated a searchable registry for these protected designs, I’m not sure how designers will be able to figure out what they are not allowed to make.

The Innovative Design Protection and Piracy Prevention Act as it stands now would leave all previous fashion designs in the public domain, but new designs would be eligible to receive protection (with no registration necessary) as long as they “provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.” Companies with enough money to do so can hire lawyers to convince judges (who better start honing their fashion skills) that their client’s design is uniquely different from anything else ever made in the history of fashion AND that some other designer’s work is “substantially identical.”

It’s worrisome to think about the frivolous litigation that such legislation could introduce (that’s not exactly what our overtaxed court system needs right now) as well as the ethical problems associated with conferring an arbitrary right of ownership to any Joe Blow who decides to lay claim to a certain combination of design features that used to be in the public domain.

One deeply ironic example that I could dredge up (and I will) is from Diane von Furstenberg. In addition to being a successful American fashion designer, she is the president of the Council of Fashion Designers of America, the main organization sponsoring this legislation. She allowed NPR to feature a photo of one of her gowns in their coverage of the bill. Here’s a quote from the report:

The Diane von Furstenberg wrap dress from 1975-76 in the collection of the Metropolitan Museum of Art. Photo courtesy www.metmuseum.org

Take, for example, Diane von Furstenberg’s wrap dress, which became so iconic after she introduced it in 1973 that it is now a part of the Metropolitan Museum of Art’s collection. As a fashion staple, the dress has been reproduced over and over again with little credit given to its creator. Today, von Furstenberg is one of the most vocal fashion figures when it comes to copyright protection.

If credit were to be given to the “creator,” many students of fashion would probably think you meant Claire McCardell, a successful American designer who introduced a wrap-around dress to the American market in 1942. It was called the “popover” and it was originally made of denim, but she eventually transformed the design for dresses, coats and beach wraps.

There’s no doubt that von Furstenberg is familiar with McCardell, but that has not stopped her from laying claim to a design that was not only popular in the 1940s, but was trendy in ancient Greece. Nor has it stopped her from championing legislation that she could never use to claim ownership of the design that has defined her career.

Oh, and there’s more. Von Furstenberg’s temptation to copy other designers without credit was evident again in a juicy case last year, when she got caught ripping off a design by a much smaller, but well-respected, Canadian label called Mercy. I’m not saying fashion designers shouldn’t copy one another; I’m saying that all of them, regardless of who they are, already do. How honest they are about it is another matter.

Designers routinely pore over vintage magazines and patterns and visit museum archives to find inspiration for the next season’s look, cherry-picking design elements that feel fresh and in line with the current zeitgeist. It’s a refreshingly open process unhindered by legal consultations. If this new legislation passes, those archives could become battlefields where litigants seek evidence that a design is or is not unique. The geeky librarian in me is worried that powerful people will attempt to limit access to particularly rich collections of design history and some unscrupulous types might destroy or hide rare materials that prove their new design isn’t as unique as they claim.

The scope of items the bill intends to protect is larger than you probably think. It’s not just for red carpet gowns: it also covers coats, gloves, shoes, hats, purses, wallets, duffel bags, suitcases, tote bags, belts, eyeglass frames and underwear. I can only imagine the lengths to which some companies with deep pockets will go to claim exclusive rights to an iconic popular design.

The sad thing is that just about everyone will suffer (well, except for lawyers). Consumers will pay higher prices (someone has to pay those legal fees) and they won’t have the same access to the plethora of knock-offs that allow them to participate in global fashion trends without paying aristocratic prices. Designers who can’t afford legal counsel will worry about being accused of copying, and they won’t be able to sue if someone copies them because, well, litigation is expensive.

In a recent TED.com talk, I argued that one reason fashion design has been elevated to an art form is precisely because of the lack of copyright protection. So, while fashion design doesn’t qualify for the same legal protections that other artistic creations have, the creative possibilities for design and the rapid pace of innovation have increased exponentially. Unlike musicians, filmmakers, photographers, writers, sculptors and graphic designers, fashion designers may incorporate just about any element of their peers’ creative work into their own design.

Too bad that era of freedom and rapid innovation might be over.

Johanna Blakley is deputy director of the Norman Lear Center, a think tank that studies the convergence of entertainment, commerce and society at the University of Southern California. She also writes a blog on media, entertainment and fashion.

 

Comments

  • http://www.facebook.com/profile.php?id=820960 Colin Fitzpatrick

    I think part of your criticism here is really misguided. I have so many friends who have had their t-shirt designs blatantly ripped off Urban Outfitters.

    The practice of larger chains stealing designs, many of which are nearly exact copies, from independent designers, outsourcing the production for cheap at the factories they already having established, and then selling for cheaper than the original is nearly endemic. This creates a framework for independent fashion creatives to try and create a market share for their work.

  • http://nrdufour.wordpress.com/ Nicolas Dufour

    In fact, the copyright warriors are everywhere. They want to lock everything and anything. And instead of talking with their own customers, they prefer to wage war against them (whatever you are an end user or a creator).

    Well, I think soon they are going to get the war they ask for. And it’s not going to be pretty.

  • http://somebodyhealme.dianalee.net/ Diana Lee

    You’re absolutely right, and I really wish people would stop trying to get copyright protection for things that have no business falling under copyright law, such as computer programs.

  • Irony

    everything should be copyright free… fuck creative people why shoudl they make all the money… originality is for the birds…
    biters rool! no rights for creatives ever!

  • http://openid-provider.appspot.com/snoop0x7b Zach

    The thing is it’s difficult for those friends to sue Urban Outfitters, and because UO is so large they may in turn build a pool of designs in order to fend off litigation. That’s already how it works in software development, large companies build patent pools to crush competitors and stop smaller companies from suing them. UO will copyright something really asinine which is used ubiquitously and then turn around and threaten anyone who sues them. We’ve seen this business model before, we’ll see it again, and we’ll continue to see it until both patent and copyrights are reformed.

  • Appalled

    Seriously??? THIS is what my tax dollars is paying for!??! What’s the unemployment rate in this country again? How long does the average Joe have to wait to see a judge on minor things like custody cases or domestic violence lawsuits? And we’re worried about a bunch of over-inflated egos that splash colors on cloth like a kindergarten child protecting their so-called “inventions”??? And some people are defending this idiocy?!?! PRIORITIES people!! When we’ve got no unemployment, no starving homeless families on the streets, medical coverage for all – THEN is the time to squabble about fashion, not when we’re all struggling to survive! Jeez!!

  • GlassGoddess

    Seriously, how much innovation goes into fashion? Fashion & clothing have been a part of our existence since birth. Look at what’s available to us retail. Most of it is poorly constructed, created out of cheap fabrics, much the same crap that clothed us in the 60′s & 70′s. Polyester is everywhere. Now that IS a crime! There is no place for copyrights in fashion. If designers created clothing for the masses then the rip off artists would have no incentive to steal. At least everyone plays on the same field. Copyrighting a teeshirt? Really? I’m not saying these corporate pigs aren’t thieves, what it comes down to is the fashion industry is not creating anything truly original. If it can be reproduced so easily, then it should not be entitled to a copyright.

  • Anonymous

    This is mainly to stop the fast fashion houses from Copying designs. It makes the large chains that use quality textiles to lose revenue and that in turn hurts the economy. I don’t think you can full understand or write an article until you actually work both sides. Sure copying is what is done it’s been done in every field, but now it’s getting to a point where it can actually hurt long standing companies. No one is going to fight over someone creating a T-Shirt that is one color however they will sue Forever21 for copying someone elses logo and pattern exactly as the originator. The thing that is sad is that your not seeing them as an artist some of them art, but some like McQueen were and will always be regarded as an artist. It’s sad to think so many people think it’s easy this industry has just as many problems as the auto industry. Many of whom work in fashion especially beginning get paid hourly under 15 dollars an hour with no benefits and no holidays and barely any sick leave allowed and you honestly think that is right? It’s complicated and those who work in fashion are probably also trying to have a normal family life and are also waiting on benefits and domestic abuse cases going to court so really wake up and remember there are real people behind these labels. I’m not saying Diane Von Furstenburg should get praise or money for the wrap dress, but if she has a print that is copied exactly then she should be able to fight and win for it.

  • F8lee

    It strikes me that the issue when it comes to clothing, as the GlassGoddess alludes, is that there is a limit of what can be done when it comes to covering the human body since the basic body shape is unchanged. Two legs, two arms, one head, etc. – if I invented the three sleeve turtleneck who would care? The point is that there is no way to become truly unique, as there is in virtually every other development endeavor. There’s nothing (but common sense and engineering constraints, perhaps) to prevent me from inventing a 7 wheel automobile, presuming I make it proportionally sized to fit on the roads and allow humans to fit inside and control the driving mechanisms.However, when it comes to clothing, there is a finite set of shapes that will cover do to cover the human form, so (Eldridge Cleaver’s “cleaver” pants aside) pretty much every basic shape has been covered. Toga? Belt? pullover blouse? check, check and check.

    The point is that it is silly to think that patents make sense when it comes to clothing. I can see fabrications (perhaps a solar powered generation cloth or an OLED wearable video monitor) as being patented or copyrighted, but then again as I understand it fabric prints are in fact copyrightable. Of course, the issue there is that if I design a fabulous paisley print and copyright it, ABS could contract a fabric house to knock off that paisley with a few minor alterations to make it just different enough as to avoid the threat of lawsuit.
    But when it comes to the shape of clothing overall, the idea that a designer can copyright the direction of the leg seam (see True Religion jeans) is either futile (I’ll just knock the concept off by making a differently styled non-straight seam) or counterproductive.

  • Cheerskep

    Blakley writes: “Copyright protection is a means to an end, and that end is promoting innovation.” As a long-time book publisher I can testify that Blakley has it wrong. The aim of copyright is to protect the creator from — to use Blakley’s own phrase — being “ripped off”. When copyright violators like certain entrepreneurs in Taiwan copy a book, cd or dvd and sell it with no royalties for the creators, they are not only cheating the artists, but discouraging innovation. Innovation requires investors of time and money, but why would anyone invest if they know they can then be “ripped off” from day one?

  • Vicky

    this whole idea is silly… fashion designers take inspiration from history, from tv, from society in general. they are always observing and forecasting future trends by observing everyday people…who protects the innovative fashion forward individual from being ripped off from the fashion designer?? seriously..fashion is great and i have a great deal of respect for the designer but to think that your design has not been influenced along the way by other greats is ridiculous.
    whats more upsetting to me is that this bill is even being considered when the future of american fashion designers is uncertain. why dont we focus on maintaining and creating more jobs instead of limiting ourselves! can we say…outsourced…again??!!

  • StarvingArtist

    I am an ARTIST who has been ripped off by fashion designers who have never paid for my art… I now copyright ALL my textile art, paintings, photographs and images… thank GOD the copyright office exists to protect ARTISTS.

    Fashion “designers” are thieves who are not very creative unless they are “inspired” by the designs by others, they are constantly copying or knocking off designs, making slight changes and manufacturing them as their “original” designs.

    I recently explained to a designer that I own a copyright for an image she was going to reproduce for upscale T-shirts to be sold around the world, the whole idea of me owning something which she wanted to manufacture and have her in-house artist duplicate without paying me hit her like a ton of bricks!

    I will sue the pants/dress off her if I see it next year in Bloomingdale’s where she has a kiosk.