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ARE KNOCKOFFS GOOD FOR FASHION? AN ANALYSIS OF CURRENT INTELLECTUAL PROPERTY PROTECTIONS OF FASHION DESIGNS IN THE UNITED STATES
Melissa Vorndran Integrative Seminar 2: Fashion May 9, 2017
!2 Window shopping on Fifth Avenue, perhaps one of the greatest fashion meccas in the world, can reveal much about the industry’s latest state of affairs. Whether it be a declaration that long hemlines are in or that off-the-shoulder shirts are the next big thing, one is able to notice that many of the items shown in the windows at famous fashion houses such as Gucci or Céline appear similar, and in some cases, nearly identical, to those appearing down the street at retailers such as Zara or H&M. In some cases, even the styling of the windows and the ads that adorn them are remarkably similar. But are these garments “stolen” by fast-fashion companies or are they simply “inspired by” their original counterparts? This question has puzzled both designers and legislators throughout recent history, in part because the fashion industry has thrived despite, or perhaps due to, the limited Intellectual Property (IP) protections of clothing under United States law. Although stitch-for-stitch knockoffs of fashion designs are harmful to designers, especially smaller ones, the fashion industry as a whole has benefitted from the loose copyright restrictions on clothing currently in place by accelerating trend cycles, thus encouraging new ideas. This discussion makes the important distinction between counterfeit goods and knockoffs. Counterfeit goods, according to Susan Scafidi of the Fashion Law Institute at Fordham University, refers to “a technical legal term when someone has copied identically or substantially identically, a logo or a label with the intent to market it as the original.”1 Under this definition, a counterfeit good would refer to the fake “Gucci” purses sold on Canal Street,2 which 1
The Museum at FIT. Knockoffs and Copyright Protection, 10:23; Video, http://exhibitions.fitnyc.edu/faking-it/video. Object label, Faking it: Originals, Copies, and Counterfeits, Museum at FIT, New York, February 12, 2014- April 25, 2015. 2
!3 are clearly not authentic luxury goods. Counterfeit goods are illegal, as it is widely acknowledged that they are detrimental to the fashion economy. As such, this discussion focuses instead on the concept of knockoffs. A knockoff is defined here as an item or garment that is substantially similar to its parent design without breaking any current copyright laws.3 This is a broad definition, as there are remarkably few IP protections for fashion designs in the United States. Even if it is a stitch for stitch reproduction of a garment, it is often not legally actionable due to the lack of protections for garments in the US. As it stands now, current US IP law protects design ideas in three distinct ways. The first is patent law, which mostly protects footwear, jewelry, handbags, and other accessories if the design is “novel, non-obvious, and ornamental (as opposed to functional).” 4 However, this is mostly inapplicable to fashion garments due to the above criteria. It is difficult to determine how novel or non-obvious a design is in a court of law, due to many fashion items being derivative of one another or of other historical garments. It is also difficult to prove ornamentation, as clothing is an essentially functional object meant to be worn. Finally, patents are expensive to obtain and can take up to a year, by which time a garment may be out of season.5 Copyright law is the second form of protection for embellishments and patterns and prints if they are “original, creative, and physically or conceptually separable from the function of an article.”6 However, 3
The Museum at FIT. Knockoffs and Copyright Protection, 10:30.
Natasha Reed, “From Runway to Replica: Intellectual Property Strategies for Protecting Fashion Designs,” The Licensing Journal 36 (2017): 26, Jstor, accessed April 3, 2017. 4
5
Ibid., 26.
6 Arianne
Vanessa Josephine Jimenez, “A Sui Generis System of Protection for Exceptionally Original Fashion Designs,”Loyola of Los Angeles Entertainment Law Review 36 (2016): 130, accessed April 3, 2017.
!4 clothing is not protected under copyright law because it is considered a “useful article” and cannot exist independently from its function. If an aspect of a piece of clothing is strictly ornamental, such as an embellishment, it may be protected, but elements of a garment intrinsic to its function, like the cut of a sleeve, are not protected. Trademark law is the final protection for fashion designs, and undoubtedly the most comprehensive. Designed to “protect a product’s source identifier,” trademarks can permanently cover a designer’s name and logo in order to preserve consumer-source recognition, where an item’s brand label is perhaps more important than the item itself. 7 Although it doesn’t protect entire designs, certain fashion elements can be trademarked, such as Christian Louboutin’s red soles or the logos on Converse’s Chuck Taylor sneakers.8 However, this protection only extends to non-functional designs that have achieved a level of fame, and as a result, consumer recognition.9 As such, an independent designer without the wide reach of brands like Converse and Christian Louboutin would have an extremely difficult time proving that their garment has sufficient consumer-source recognition, especially if they are being knocked off by larger stores like Forever 21. A great example of how loose this copyright law is can be illustrated by looking at two Chanel suits from the late 1960s (figure 1). On the left is the Chanel day suit in wool bouclé, made in France; the right is a copy of a Chanel day suit in wool bouclé made in the United States. While the dress on the right was a licensed copy, if a company wanted to create an unlicensed version, many elements of the design would not be legally protected in the United 7
Jimenez, “A Sui Generis System of Protection,” 109.
8
Christian Louboutin Pensee Shoes , Faking it: Originals, Copies, and Counterfeits, Museum at FIT, New York, February 12, 2014- April 25, 2015. 9
Jimenez, “A Sui Generis System of Protection,” 108.
!5 States. The design couldn’t be patented, because the concept of a skirt suit was not wholly original, nor does it employ new technology. The design itself could not be protected under copyright law, as it is functional. The pattern of the textile, however, may be eligible for legal protection, although simply changing the color on the copy would make it ineligible. Finally, trademark law could cover the CC logo on the buttons, but nothing else. If this was not a licensed copy and was instead a reproduction from a fast fashion retailer, they could simply change the color of the pattern, remove the CC logo on the buttons, and sell as many of these suits as they could.
Figure 1. Chanel Suits on display at the FIT Museum. Left: Gabrielle “Coco” Chanel, day suit, wool bouclé, France; Right: Licensed copy of a Chanel, day suit, wool bouclé. 10
Chanel Display, Faking it: Originals, Copies, and Counterfeits, Museum at FIT, New York, February 12, 2014- April 25, 2015. 10
!6 Whether this is an ethical practice or not can be hotly debated, but the history of fashion designs includes a great deal of appropriation from other cultures, designers, and the past. Even Chanel herself was an advocate for copies, saying that “If mine are copied, so much the better. Ideas are meant to be communicated.” 11 Inevitably, this involves a sometimes direct copy of the source material, whether it be a Chanel suit or a Céline runway look, as Zara’s S/S 2014 collection copied.12. As depicted below, Céline SS 2014 (left) showed a model going down the runway against an orange backdrop, wearing a slouchy black suit jacket atop a lacey black and white blouse, with white trousers and shoes. A Zara ad campaign featured a remarkably similar scenario, with the main difference between the two being the lack of lace on the hem of the blouse. Seeing the two images side by side, it is difficult to deny the fact that, in Chanel’s words, ideas are being communicated.
Figure 2. Céline’s S/S 2014 Runway Look (Left) and Zara’s S/S 2014 ad campaign (Right). 11
Faking it: Originals, Copies, and Counterfeits, Museum at FIT, New York, February 12, 2014April 25, 2015. Julie Zerbo, ““Fast Fashion Brands Go to Great Lengths to Emulate High Fashion Ones,” The Fashion Law, April 4, 2017, accessed April 9, 2017, http://www.thefashionlaw.com/ home/fast-fashion-brands-are-going-to-great-lengths-to-emulate-high-fashion. 12
!7 The dispersement of these ideas could not happen on such a large scale without the lack of IP protections currently present in the US. In fact, it is perhaps these reproductions which encourage mainstream people to adopt the styles in the first place. After a garment walks the runway, it enters the public consciousness for the first time. It likely would reference a past garment or moment in time. There is large appeal in getting and wearing this good as soon as it is available, as clothing is often a positional good, or a status indicator. 13 After this garment is introduced, it is repeated in its many variations through fast fashion retailers and mainstream department stores. Through this, it is widely accessible to the average American consumer, and a trend can be created. According to fashion theory, a trend has a specified life span which can be broken up into five distinct parts: introduction, rise in popularity, peak, decline, and rejection.14 In the introduction stage, a trend is worn by very few people. As it reaches its peak, the trend reaches more and more people as the price point is often lowered to cater to a mass market. Once the peak has been reached and the market has been flooded, the trend begins to become less popular because it is no longer unique.15 After this, a new idea is created to take its place, and the cycle continues with another trend. Using the Céline garment as an example in a fictional scenario, perhaps the newest trend is the white and black lace blouse shown on the model. On the runway, it is depicted with a suit Kal Raustiala and Christopher Sprigman, “"The Piracy Paradox: Innovation and Intellectual Property in Fashion Design." Virginia Law Review 92, no. 8 (2006): 1720, accessed April 3, 2017. 13
14
Sana Mahmoud Abbasi, “The Fashion Cycle and Theories of Fashion,” Indian Journal of Research (2013): 117. 15
Ibid.
!8 jacket and trousers, but perhaps someone on the street wears the original garment with jeans. Another brand likes the idea and creates a silk lace blouse, but with white lace on the top rather than black. A person then sees that idea and buys a similar version from Forever 21, where they have the item available in many colors. Eventually, all “fashionable” retailers will carry some incarnation of the item. After a while, fashion conscious consumers will lack the uniqueness originally associated with the good, as it is no longer exclusive. They move onto the next item, and the cycle continues again. This accelerated cycle refers to a concept coined by Christopher Sprigman and Kal Raustila, the authors of “The Piracy Paradox,” as “increased obsolescence.”16 As sociologist Georg Simmel wrote, “As fashion spreads it gradually goes to its doom.”17 The trend cycle is thus accelerated by rapid appropriation of designs. If only Céline were selling blouses that were white with black lace on the neckline and hem, it would take an extremely long time for consumers to lose the status value of their blouses. But because everyone else is wearing it as well, it becomes easy, and even necessary, to shift ideas. This idea is perhaps best put forth by Miucci Prada when she said, “We let others copy us. And when they do, we drop it.” 18 Not only is this widespread acceptance of fashion designs beneficial for the original designers themselves, as they get more recognition for their original design, it also forces the designer to come up with new designs to continue sales.
16Raustiala
and Sprigman, “"The Piracy Paradox,” 1720.
17
Ibid., 1721.
18
Ibid., 1722.
!9 Because designers are forced to come up with new ideas quickly in order to stimulate demand, they often explore many other unique ideas to attract attention. These new ideas may be derivatives of their earlier work, in essence, knocking themselves off, or it may take “inspiration” from other designers past or even current collections. In rare cases, these new ideas are wholly new, and would likely not have been created if it weren’t for the profit motivation behind creating new designs. However, it is entirely possible (and highly likely) for one designer to be copied one season but then copy someone else the next. Without legal repercussions, this process is accepted and even encouraged among the fashion industry as a whole, helping secure trends as well as foster the motivation to begin new ones. Thus, fashion design thrives on the premise of IP law, which is to encourage creativity, through its very absence in the market. However, there is a downside to the current loose IP restrictions in place. The most notable downside of the current system is the effect that it has on small designers, especially if a large retailer appropriates their designs. Because the original source is often never identified, they can harm the designer who depends on selling their creations to make a living. This muddles the line between counterfeit and knockoffs, as these copies can sometimes be mistaken or substituted for designer’s work. In this case, copyists can negatively affect designers, especially if the original garment and the copy are within the same price point and could be afforded by consumers within the same markets.19 When a luxury brand is copied, the copies are often bought by those who cannot afford the original. This creates a sense of accessibility for the general public, who is now able to receive a piece of the industry not available to them before. However, when an independent designer is knocked off in this same way, the same consumers
19
Jimenez, “A Sui Generis System of Protection,” 128.
!10 who could buy the original garment are buying the knockoff instead, which can create a trend but also stifle the independent designer’s business. By attempting to use the limited legal protections in place, independent designers may or may not be successful at protecting their designs. In this case, the design itself is spread throughout the consumer base but the original garment is neglected. With this knowledge, one might walk by the windows of Fifth Avenue and acknowledge the originality of the designs at Céline or Gucci but be drawn in by the displays at more massmarket retailers and purchase a garment there instead. Even though it is arguably unethical to shop “stolen” designs at these stores, it is perfectly legal under the current US IP law. In this case, creativity in the fashion industry is encouraged not by the threat of IP violation but because of it. By comparing the differences between knockoff goods and their original counterparts, it is apparent that knockoff goods help spread the trends created by high fashion companies to lower ones, as well as encourage the innovation to create new trends and designs. Whether you choose to walk through the high fashion or mass-market door on Fifth Avenue, you are a part of an industry that spreads designs to every potential consumer, for better or worse.
!11 Annotated Bibliography Primary Sources: Museum at Fashion Institute of Technology. “Faking it: Originals, Copies, and Counterfeits.” Last modified April 2015. http://exhibitions.fitnyc.edu/faking-it/ Secondary Sources: Abbasi, Sana Mahmoud. “The Fashion Cycle and Theories of Fashion.” Indian Journal of Research 2 (2013): 117-119. In this scholarly article written by the Director of Fashion Design at the American University in the Emirates in Dubai, Sana Mahmoud Abbasi writes about the different aspects of the fashion cycle, including the five main stages of a trend. It discusses both the general stages as well as different theories regarding why and how certain trends begin, covering the “trickle-down” theory in detail. This article was extremely useful for me in order to understand the specifics of a concept that I learned about in high school. I was able to use this article to help explain a concept that I originally assumed relatively common knowledge, but is in fact unique to the study of fashion design theory. Rather than contain a strong argument, this article rather served to inform its scholarly audience about the different aspects of the fashion cycle. Jimenez, Arianne Vanessa Josephine. “A Sui Generis System of Protection for Exceptionally Original Fashion Designs.” Loyola of Los Angeles Entertainment Law Review 36 (2016): 101-135. Accessed April 3, 2017. In this scholarly article published by Loyola Marymount University Law School, Jimenez, a UC Berkeley Law candidate, argues that a “suis generis,” or “unique” style of
!12 copyright protection would both shield designers from copyists and encourage creativity among the fashion industry. She argues that a “full dress” style of copyright, in which all aspects of a design would be protected, would be not only unnecessary but harmful to the industry. She explores how fashion design currently interacts with the Intellectual Property system, and finally proposes a “middle ground” system that will be in the best interest of designers and consumers. This was a very original argument backed up with direct references to cases and current laws which I found very reliable. This article was really informative to me because it explained the current copyright protections in a very accessible way. It also made me think about copyright protections in a different way because they may not always be completely necessary or even helpful.
Raustiala, Kal, and Christopher Sprigman. "The Piracy Paradox: Innovation and Intellectual Property in Fashion Design." Virginia Law Review 92, no. 8 (2006): 1687-777. Jstor. In this scholarly journal published by the Virginia Law Review by UCLA Law Professor Kal Raustiala and NYU Law Professor Christopher Sprigman, the authors analyze a phenomena they coin “The Piracy Paradox.” Written in an academic though accessible style, the authors first define what they consider to be the fashion industry and discuss a history of copying in the fashion industry. They consider reasons why fashion is able to operate at a low-Intellectual Property equilibrium level in the United States, where there are little to no legal protections but industry is still able to thrive. They also consider why, in European countries with more comprehensive laws, little to no one actually exercises their intellectual property rights. This journal is widely cited in other articles
!13 about fashion and intellectual property, and should be required reading for any interested in this topic. This journal helped give me a firm background in this topic and raised some interesting questions I may pursue in further research.
Reed, Natasha. “From Runway to Replica: Intellectual Property Strategies for Protecting Fashion Designs.� The Licensing Journal 36 (2016): 26-28. Jstor. Accessed April 3, 2017. This scholarly article, written for law professionals interested in fashion licensing, explores different ways that professionals in the United States can protect fashion designs from copyists. It explores the idea that fashion is only eligible for copyright when it is separated from its functional or utilitarian features. It explores the impact of counterfeit goods on the global fashion goods market, and analyzes recent cases that address copyright issues. It also includes specific strategies for designers and their lawyers interested in legally protecting their designs, such as registering their name trademark with US Customs to halt international counterfeits. It is limited in its discussion of more complex copyright issues due to its primary focus on counterfeiting. I thought that this article was extremely informative and simple to understand in terms of how designers and their legal counsel can use the current US system, however limited it may be, to protect certain aspects of their designs. It was illuminating to see how difficult copyright protections in fashion design are in practice.
!14 Zerbo, Julie. “Fast Fashion Brands Go to Great Lengths to Emulate High Fashion Ones.” The Fashion Law, April 4, 2017. Accessed April 9, 2017. http://www.thefashionlaw.com/ home/fast-fashion-brands-are-going-to-great-lengths-to-emulate-high-fashion. This article from the law and business analysis website “The Fashion Law,” written by its founder and editor-in-chief Julie Zerbo, conducts a side-by-side analysis between ad campaigns of high fashion brands and fast fashion brands. It argues that, by copying select elements from the ad campaigns created by high fashion brands, fast fashion companies are able to get consumers to make a connection between the high fashion brand and the fast fashion company, thus leading to more sales. Although this practice is technically legal, it is a clear copying of both the clothes and the merchandising methods of the higher end brands. This was a very original argument asserted by a leader in the Fashion Law sector, however the website platform is more blog-like than newspaper. Even though it puts forth a very convincing and through-provoking argument, it is more of a popular source. I thought that this was a fascinating article which lent a different perspective on the concept of intellectual property in the fashion space. It helped me think about the concept of “infringement” in the fashion industry in a more nuanced way than simply looking at clothing would have allowed.