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:
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.