Fashion Lawlessness

“The market distortions suffered by the fashion industry as a result of design piracy have long called for a remedy, but as yet the U.S. is unwilling to deliver. While currently affording protection to surface decoration, fabric design, and labels, U.S. law is woefully incomplete when it comes to protection of the “soul” of the clothing design, the cut, and overall appearance. Whether this decision is based on an assessment of artistic merit or a concern for public welfare, it is an unjustifiable distinction for treating clothing designs less favorably than other forms of intellectual property.”

I wrote the above conclusion in a published law review article, “Hung Out to Dry: Clothing Design Protection Pitfalls in U.S. Law,” shortly after completing my graduate education in 2002.

Through my research for the article, I was surprised to learn that in the United States we are in a literal free-for-all when it comes to fashion design. Designers can freely borrow fashion design elements used by others or in some cases knock off a popular design or resurrect a past design in its entirety and sell it as an original. It has become part of the fashion culture here and the copying is not just cheap discounters leaching off of big name designers but also big name designers “borrowing” lesser-known designer’s works.

Not everyone is happy about this situation, though. You can click here to watch a video from Stop Fashion Piracy explaining the views of major fashion designers on this issue.

Most other economically vibrant countries do afford at least some measure of protection for fashion design. In the U.S., due to various technicalities in existing copyright, trademark and design patent laws (detailed in my paper) and the relatively short lifespan of most fashion designs, fashion always falls short of legal protection. Even though Congress keeps introducing legislation to protect clothing design, including the “Innovative Design Protection and Piracy Prevention Act” currently pending before Congress, the bills never get much traction.

Why?

The answer seems to lie in our emotional connection to clothing as identity. In American life, we prefer an environment where people can move freely among social classes and believe strongly that anyone with a lot of hard work and a little good luck can become as successful as they desire.  The ability to “look the part” is a huge part of this mobility.

Throughout the history of design legislation the two primary social reasons for not enacting clothing design protection are: 1) it will increase the cost of clothes; and 2) it will allow us to segregate people by social status according to the clothes they wear.

We have grown accustomed to being able to buy “similar” clothes to the latest expensive fashions at retailers like H&M, Wal-Mart, Target and Payless Shoes. Sure, no one will mistake most of these versions for the real thing but at a quick glance you can send the message that you keep up with the latest trends. I love to find a great piece at Target or Wal-Mart and frequently it gets as many compliments as more expensive alternatives.

Only recently has discount clothing become such a big part of our lives. When I was growing up, no one would ever mistake clothes purchased at a discount retailer for anything close to high fashion. The discount clothes and shoes were clunky, functional but boring designs or strange foreign designs that no one else was wearing. They didn’t offend anyone but they didn’t impress anyone either!

Some worry that any sort of fashion design legislation would impose a fashion divide between the rich and the poor. The rich would look fashionable and the poor would look poor. If you are a true fashionista, you could argue that the same holds today. Some with an encyclopedic knowledge of designers and brands might judge you based on the number of high fashion logos you have on display or the styles you are wearing. The majority of us, however, don’t wear a lot of clothes with logos anyway and no one really knows whether our clothes are designer or not.

So, we see the same arguments going round and round. On the one hand, it is unfair to reward the author, the musician, the visual artist, the filmmaker and other creative workers with the right to protect their works from copying but not the fashion designer. On the other hand, fashion and clothing is a critical part of American life and woe be the politician who raises the cost of living or changes the fashion choices of those already struggling in a recession. You need look no further than the Congressional testimony on a previous incarnation of the current design bill to see these same arguments:

“[T]he issue facing the fashion design industry now is critical. We hear much about the economy. The debate as to whether we are in recession or on the cusp of recession is ongoing. Whatever it is, if we don’t take steps now to protect intellectual property and deal with the issue of piracy, we are putting our entire national economy at risk.”

–Honorable William D. Delahunt, (D-Massachusetts) before the House Subcommittee on Courts, the Internet and Intellectual Property, February 14, 2008.

“Retailers just had the worst January in 40 years, and given the state of the economy right now, this is no time to be passing laws that will raise the price of clothing and layer on legal expenses. The fashion industry is very competitive and competition encourages lower prices, better looks, which of course benefits the American consumer. . . . The legislation threatens to split Americans into two classes of people: those with the money who can buy copyrighted designs, and those who can’t quite afford them.”

–Steve Maiman, Proprietor, Stony Apparel, before the House Subcommittee on Courts, the Internet and Intellectual Property, February 14, 2008.

The current bill (S 3728) sets the bar extremely high for fashion design protection. You must prove that your design is a “unique, distinguishable, non-trivial and non-utilitarian variation over prior designs.” While not many designs will ultimately be successful in their quest for legal protection, if the legislation does pass, designers will gain important leverage over copyists. At a minimum, a large designer with enough resources to sue could tie up a copyist in expensive litigation for years. The copyist defending the suit would have to divert at least some resources from copying and production to legal defense and would be unable to copy as many designs as before. One successful legal challenge could put a copyist out of business. Overall, this litigation could benefit both large and small designers. But, it also could impact the types of designs seen at discount stores.

In the eight years since I wrote my paper, I still feel that fashion design needs some recognition and legal protection but I am not sure exactly what that should be. It seems a simple first step would be simply to require that a copier credit the original designer or have to mark or alter the copy in some subtle but visible way. Perhaps we could come up with a symbol similar to the copyright symbol that would indicate copying instead.

What is your prediction on the fate of the current Innovative Design Protection and Piracy Prevention Act bill? Do you sympathize with fashion designers? How much would you care if discount clothing reverted to clunky and functional and “fashion” cost a bit more? Please share in the comments.