COPYLEFT M©KENZIE FORBES HARRIS UPDATED by mckenzieharris

M©KENZIEFORBES FORBES HARRI M©KENZIE HARRIS

M©KENZIE M©KENZIEFORBES FORBESHARRIS HARRIS

INTRO

IN THE

Supreme Court of Public Opinon INSPIRATION ,L.L.C, Petitioner, v.

IMITATION, INC., et al., Respondents.

CAUSE: 17 U.S.C. § 101,§ 102,§ 106.: INFRINGEMENT OF COPYRIGHT, VISUAL ARTISTS RIGHTS ACT OF 1990 (”VARA”)

COMPLAINT FOR COPYRIGHT INFRINGMENT, INDUCED COPYRIGHT INFRINGEMENT, BREACH OF CONTRACT, TRADEMARK INFRINGEMENT, TRADE DRESS INFRINGEMENT, AND UNFAIR COMPETITION 3

Editors Letter

I began my investigation of into the lack of intellectual property rights in the fashion industry, Delveing beyond my preconceived perceptions, in order to placemyself into the “creative process” of a predatory plagiarist. Exploring concepts such as inspiration vs imitation, authenticity vs ORIGINALITY, predatory/intentional plagiarism vs the subconscious(accidental) plagarism phenomenon known as kleptomania. Kleptomnesiais a subconcious generating an idea that you believe is novel, but in fact was created by someone else. I also used symbols of protection vs insecurity as a main focus. I began creating works using my evergrowing archive of found objects (my readymades) to derive designs from. By mirroring the current legislation and duchamp’s theory of readymades, which are inherently similar, I am not only using my work a form of resistance to mock the purely economic and consumerist logic to which copyright laws have been formed and upheld, but i am also serving as a warning to emerging designers , including myself, who are especially vulnerable to plagiarism but lack the basic legal knowledge to protect themselves.

M© kenzie

FORBES HARRIS 4

INTRO

“Good artists COPY. Great artists STEAL.”

“LESSER ARTISTS BORROW; GREAT ARTISTS STEAL.” Igor Stravinsky, 1986 6

DISCLAIMER

FAIR USE POLICY AND LEGAL DISCLAIMER This publication contains copyrighted material the use of which has not been specifically authorized by the copyright owner. Under Section 107 of the Copyright Act 1976, allowance is made for “fair use for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Fair use is a use permitted by copyright statute that might otherwise be infringing. Non-profit, educational or personal use tips the balance in favor of fair use.” In accordance to the New School policies on intellectual property, highlighted in the institutional policies and procedural manual, under the section titled No Limitation on Fair Use, “Nothing in this Policy shall limit the rights of faculty members, students, or the University to make a “fair use” of copyrighted Works as that term is defined in the Copyright Act.” The work enclosed follows current US intellectual property legislation, The New Schools intellectual property, free exchange of ideas, freedom of artistic expression and plagarism policies. 17 U.S.C. § 107(a) (2006) “Institutional Policies & Procedures Manual” The New School | University Policies https://www.newschool.edu/human-resources/ institutional-policies-and-procedures-manual.pdf

“IMMATURE ARTISTS COPY, GREAT ARTISTS STEAL.”

William Faulkner, 1974 9

“IMMATURE ARTISTS IMITATE. MATURE ARTISTS STEAL.” Lionel Trilling, 1962 10

“GREAT POETS IMITATE AND IMPROVE WHERAS SMALL ONES STEAL AND SPOIL.” W.H. Davenport Adams, 1892 11

“GOOD ARTISTS COPY, GREAT ARTISTS STEAL”

Steve Jobs, 1988

“BAD DESIGNERS COPY, GREAT ARTISTS STEAL”

Mckenzie Harris, 2017 13

In the words of...

BANKSY Picasso Quote, 2009, carved marble and reinforced wood.

my...

MCKENZIE FORBES HARRIS original ideas ideas, 2017 paper and lead

IDEAS

In the words of...

VIRGIL ABLOH

In the words of...

VIRGIL ABLOH

In the words of...

VIRGIL ABLOH

Current “PROTECTIONS” In the words of the law...

for fashion design under United States legislature.

LEGAL “PROTECTIONS”

Article I, section 8 of our Constitution lays the framework for our nation’s copyright laws. It grants Congress the power to award inventors and creators for limited amounts of time exclusive rights to their inventions and works. The Copyright Act of 1976 proclaims, “copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”121 The Act originally defined “works of authorship” as (1) “literary works; (2) musical works, including any

intellectual property protections. the three main areas of protection which designers can try to seek refuge in are patent,13 trademark (and trade dress),14 and copyright. Copyrights are not granted to apparel because articles of clothing, which are both creative and functional, are considered useful articles, as opposed to works of art. The design of a garment remains unprotected in copyright for one main reason: the expression of the design serves a utilitarian rather than an artistic purpose. On one end of the intellectual property spectrum is patent law, which provides protection to objects utilitarian in nature. A patent

Trademarks only protect brand names and logos, not the clothing itself. And the Supreme Court has refused to extend trade dress protection to apparel designs. Thus, if a thief steals a creator’s design, reproduces and sells that article of clothing, and attaches a fake label to the garment to market it, he would be violating Federal law. However, under current law, it is perfectly legal for that same thief to steal that same design, reproduce and sell the article of clothing if he does not attach a fake label to it. This loophole allows pirates to cash in on other’s efforts and prevent designers in our country from reaping a fair return on their creative

““[C]opyright protection extends to original works of authorship fixed in ANY tangible medium” accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5)pictorial, graphic, and sculptural works; (6)motion pictures and other audiovisual works; and (7) sound recordings. Most industrialized nations provide legal protection for fashion designs. However, in the United States, the world’s leader in innovation and creativity, fashion designs are not protected by traditional intellectual property protections. The fashion ―design as a whole is unprotected in the United States under the current state of the law.8 However, aspects of that design may be safeguarded under existing

is a set of exclusive rights granted by the state to an inventor for a limited period of time in exchange for the disclosure of his Invention. Although patents can be used to protect “any useful art, manufacture, engine, machine, or device, or any improvement therein not before known or used,” patent law imposes strict requirements. To acquire a patent, an invention or design must meet five requirements: the patentable subject matter requirement, the utility requirement, the novelty requirement, the description requirement, and the non-obviousness requirement. Design patents are intended to protect ornamental designs, but clothing rarely meets the criteria of patentability.

investments. 17 U.S.C. § 102(a) (2006

In the words of the law...

LEGAL “PROTECTIONS”

Virgil Abloh. In his own words.

inspiration

Marcel Duchamp

The artist who the readymade, is arguably the century’s most inﬂuential development on artists’ creative process. His peices attack the preconcieved notion of an artist and revolutionized what can be considered art. Fountain is the most famous of Duchamp’s so-called readymade sculptures comprised of mass-produced, commercially available, often utilitarian objects, that were then modified and recontextualized as a work of art. Readymades disrupted centuries of thinking about the artist’s role as a skilled creator of original handmade objects. Instead, Duchamp argued, “An ordinary object [could be] elevated to the dignity of a work of art by the mere choice of an artist.”1 Duchamp is characterized as“a prolific artist, his greatest contribution to the history of art lies in his ability to question, admonish, critique, and playfully ridicule existing norms in order to transcend the status quo—he effectively sanctioned the role of the artist to do just that.”2 The idea at hand, of art primarily as a concept rather than an object, is what would make Fountain arguably the most intellectually captivating and challenging art piece of the 20th century. It epitomises the assault on convention and accepted notions of art and the artists. Marcel Duchamp’s Fountain was arguably the first ever piece of conceptual art-- work that was “in the service of the mind,” as opposed to a purely “retinal” art, intended only to please the eye.3 The original, which is now lost, consisted of a standard urinal, laid flat on its back and signed with a pseudonym, ‘R. Mutt 1917’. This work is one of a small number of replicas which Duchamp authorised in 1964, based on a photograph of the original by Alfred Stieglitz.

Duchamp as quoted in “Eleven Europeans in America,” James Johnson Sweeney (ed.), The Museum of Modern Art Bulletin (New York), vol. 13, no. 4/5, 1946, p. 20 Rosenthal, Nan. “Marcel Duchamp (1887–1968).” In Heilbrunn Timeline of Art History. New York: The Metropolitan Museum of Art, 2000–. http://www.metmuseum.org/toah/hd/duch/hd_duch. htm (October 2004) 3 Duchamp as quoted in H. H. Arnason and Marla F. Prather, History of Modern Art: Painting, Sculpture, Architecture, Photography (Fourth Edition) (New York: Harry N. Abrams, Inc., 1998), 274 2

MARCEL DUCHAMP

‘Fountain’ by Marcel Duchamp, 1917 Photograph by Alfred Stieglitz 31

Not Duchamps Foutains...

Fractured Fountain (Not Duchamp Fountain 1917) Mike Bidlo, 2015. Courtesy of Francis M. Naumann Fine Art, New York.

MARCEL DUCHAMP

Fountain (After Marcel Duchamp) Sherrie Levine, 1991”MashUp: The Birth of Modern Culture” at Vancouver Art Gallery 33

In the words of...

The Bride Stripped Bare by Her Bachelors, Even (The Green Box) Marcel Duchamp 1934

Duchamp published this collection of 94 documents to explain some of his thinking and to show some of the preliminary works relating to The Large Glass. The notes were left loose so that their relationships for the reader would be determined by chance

MARCEL DUCHAMPS

L.H.O.O.Q. Marcel Duchamp 1919 One of the most famous derrivate works 35

Excerpts of...

Copyrighting the “Useful Art” of Couture: Expanding Intellectual Property Protection for Fashion Design M.C. Miller. William and Mary Law Reveiw Volume 55. 2014. INTRODUCTION To those unfamiliar with the fashion industry, the world of style—although a frivolous land of superfluous trends and ridiculous price tags—is a place where runway models pose, teen girls spend, and all participants coexist in superficial bliss. To fashion insiders, however, the elegant fashion shows and mall-rat madness serve only to mask a long-brewing truth: the fashion industry is at war. On one side of the battleground stand those who create—a group composed primarily of designers and creative directors working for couture fashion houses that service celebrities and the upper echelon of society.1 For these individuals, the creative design process is a labor of both love and a commitment of time. On average, it takes approximately two years for a designer or creative team to turn a visionary concept into a physical object ready for wear.The first step in this creative process requires designers to predict what trends will be popular nearly two years into the future when the final garment will be produced. In addition to following color and textile trends, designers draw further inspiration from studying street fashion, visiting art museums, traveling to other nations, keeping track of other design industries, and, most importantly,using their imaginations. Once a designer collects enough inspiration to begin crafting a new design, he uses his knowledge of garment construction and unique sense of creativity to create a two dimensional sketch dictating the physical creation of the design. After he is satisfied with this blueprint, the designer searches for fabrics and materials that will not only enhance the aesthetic appearance of the design but also will physically support the actual creation of the garment. Once the designer selects the appropriate 36

fabric, he uses his sewing skills and artistic knowledge to create a mock version of the garment, which is later inspected and tailored by the designer and his creative team. Finally, after nearly two years of innovative effort and technical labor, the designer approves the article of clothing for public or private manufacture and begins seeking new inspiration to begin the lengthy design process all over again. Opposing these couture designers on the fashion industry battleground stand those who copy—massproducing discount retailers who target fashion-forward twentysomethings on a budget.Instead of creating unique designs and signature styles like their imaginative components, many of these discount retailers instead focus their efforts on providing their customers with the chance to purchase designer “knockoffs”—articles of clothing and accessories that are designed to look like high-end fashion pieces from thecouture runway but are sold at a dramatically more affordable price. Unlike the attention to innovation and careful productionprocess valued by the designers described above, these fashion offenders are primarily concerned with strict replication and quick construction. As a result, originality and creativity are often conspicuously missing from the discount retail production process. Take, for example, Forever 21, an American-based mass retail chain that sells trendy clothing and accessories at an affordable price. Instead of employing fashion designers, Forever 21 hires a team of “design merchants” who purchase inventory from a wide variety of suppliers. These suppliers also take a similarly unimaginative approach to the clothing they produce. The owner of Simonia Fashion, one of the leading suppliers of Forever 21, described her “design method” simply, explaining, “If I see

M.C. MILLER

something on Style.com, all I have to do is e-mail the picture to my factory and say, ‘I want something similar, or a silhouette made just like this.’” Another discount retail supplier, Faviana, routinely sends representatives to take photographs of the red carpet trends at runway shows and celebrity events and immediately submits these images to Chinese factories with the capacity to quickly massproduce less expensive copies.As a result of this production process that values designer replication over original creativity, Forever 21 has become known for supplying low-end alternatives to popular designs from the Runway. But these designs do much more than draw general inspiration from the overall form of high-end pieces; they are true copies, purposefully indistinguishable from the originals they emulate. Thanks to the striking similarities between many of Forever 21’s designs and the pieces on which they are so obviously based, the retail chain has become involved in much litigation concerning its designs In an attempt to put an end to the chain’s unapologetic copying, renowned designers like Diane von Furstenberg, Betsy Johnson, and Anna Sui have filed suits against Forever 21, claiming that the store violated their intellectual property rights by copying their work. Unfortunately for these designers, their fashion designs—the creative works to which they devoted time, labor, and imagination—receive little to no protection from America’s modern intellectual property regime. As it stands today, no meaningful legal recourse exists to put an end to Forever 21’s unabashed behavior. Whereas previous scholarship concerning this issue has focused primarily on the reasons fashion designs do or not deserve various types of intellectual property protection, this Note will attack the intellectual property framework as a whole in order to illuminate the reasons why fashion designs can and should receive intellectual property protection, namely copyright protection. More specifically, this Note will argue that the current distinction between different types of intellectual property protection should not present problems for fashion designs.

DEFINING FASHION: A UTILITARIAN ART FORM People typically stride through life clothed. Recent proclamations of equal protection and civil liberties aside, clothes are an unavoidable part of everyone’s life today. However, clothes—“fashion”—mean very different things to different people, as a result of both situational factors and personal characteristics. Given both the situational and personal differences that can affect the characterization of a given fashion object or design, the true nature of the articles of clothing we drape over our bodies each day is difficult to describe. In order to arrive at an accurate description, one large, overarching question must be answered: are pieces of fashion useful, everyday objects or pieces of high art? An important point to consider in answering this question is the utilitarian nature of these objects. The articles in question can be classified anywhere on the spectrum of “clothes” (solely utilitarian objects that have secondary, aesthetic features but exist primarily to protect our bodies and avoid the exposure of indecent body parts) to “fashion” (art objects that may happen to serve utilitarian functions but are created for solely nonutilitarian reasons). As the illustrations above demonstrate, the same object may fall at different places along this spectrum depending on both situational and personal contextual factors. Unfortunately, the answer to the question posed above has no effect on the amount of true protection afforded to fashion designs under America’s current intellectual property regime. Regardless of whether fashion designs are classified as utilitarian objects or pieces of art, fashion designers whose work has been copied receive little legal recourse from the three main branches of intellectual property law—patent, copyright, and trademark. If an article of clothing is classified as a utilitarian object, patent protection is unavailable for all practical purposes because this recourse applies only to certain types of true “innovations” and protects only individual elements of the overall design. If, on the other hand, an article of clothing is classified as an art object, copyright protection is currently unavailable because fashion designs also serve unavoidable utilitarian purposes and are not widely accepted as 37

Excerpts from...

Fashion: An Unprotected Object of Art and Utility Fashion designs have the potential to be original, particularly when they are compared to other copyright eligible objects. The most widely drawn comparison is that between fashion designs and works of literature. Any piece of English literature, for example, is composed of words. These words (and sentence structures, rhetorical devices, etc.) are all drawn from a relatively finite “master list.” Authors draw from this unoriginal master list but are simultaneously able to combine unoriginal words in unique ways to create works of art that as a whole are remarkably original. Creating fashion designs operates much in the same way as creating pieces of literature. Designers draw from a preexisting vocabulary of color, pattern, form, and shape, and some talented designers are able to craft these elements together in ways that create works that are unmistakably original in overall design. On the other end of the spectrum, similar logic can be employed to argue that fashion designs do not have the potential to be original. In other words, because fashion designs necessarily involve drawing inspiration from an industry-wide vocabulary of color, form, and texture, some critics ignore similarly situated copyright-protected mediums and argue that it is inherently impossible for a fashion design to achieve the high level of originality required for copyright protection to apply. As a result of the current intellectual property protection framework, fashion designers are left with no realistic legal defense with which to protect themselves against the growing mass-market trend of blatantly copying couture designs.102 The modern system, which is designed around a strict dichotomy between useful and artistic objects, unfairly forces items that are useful in one context to suffer from the ways in which the same objects might be artistic in another context (and vice versa).While fashion designs deemed primarily utilitarian in nature can never escape their artistic potential in order to receive a relevant design patent, fashiondesigns deemed artistic in nature can never escape their potentiallyutilitarian functions in order to receive copyright protection. In order to combat this problem, fashion advocates have proposed various solutions to disincentiv38

ize mass retail chains from copying couture designs without permission. The legal system, however, should not be forced to invent “solutions” like these when America already has a long-standing intelletual property framework in Place. The Architectural Design Amendment of 1990 The Architectural Works Copyright Protection Act was added in 1990 and amended the Copyright Act to include “architectural works” as works of authorship. This new medium is defined in the amendment, which states that an “architectural work” is the “design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings.”124 Such a work includes “the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.” Obvious comparisons can be made between architecture and fashion in terms of both separability and originality. In terms of separability, architectural works operate much like fashion designs—no matter how beautiful or ornamental an architectural design may be, it unavoidably has the capacity to fulfill the basic utilitarian function of providing shelter. In an attempt to sidestep this problem, the Architectural Design Amendment leaves separability largely unaddressed.126 Artistic notions aside, works of architecture provide the unavoidable function of providing shelter regardless of their artistic value. Regardless, these works are now provided copyright protection despite their utilitarian nature. In terms of originality, the same basic principles apply to the originality of works of architecture that apply to fashion designs. They are both a type of three-dimensional visual art that is comprised of various elements—color, shape, form, and texture—and is intensely detail-oriented. The Architectural Design Amendment handles the issue of originality directly; the statutory language clearly states that the term “architectural works” does not include individual standard features, but instead looks to the overall composition and form of the design and building. This same standard could be used to determine the originality of fashion designs as well. For example, imagine a four-story brick building

M.C. MILLER

centered around a spiraling staircase that leads to a pointed lookout needle. Many building designs may include each of these individual elements, but perhaps no building has combined the elements together to create the same overall effect. Under the Architectural Design Amendment to the Copyright Act, this type of total uniqueness is sufficient for a finding of originality. In the similarly situated world of fashion, take a long, flowy dress with thin straps, a plunging v-neck, an elaborate floral detail, and distinctive black borders. Each of these elements standing on its own may not be “original”: Many dresses are long and flowy. Many dresses have thin straps. Many dresses have plunging v-necks. Many dresses have elaborate floral detailing. Finally (and not surprisingly at this point), many dresses have distinctive black borders. All of this unoriginality in mind, it is alsopossible that no other dress has combined the individual elements in this way before, so the dress taken as a whole design is original. It is important to note that not every fashion design would be original enough to garner copyright protection (just as not every architectural design would be original enough to receive protection); each design must be evaluated on its own merits. However, an important takeaway is that the legislature has already determined that it is possible to determine whether an object comprised of “unoriginal” elements can still be original when these elements are combined in a new and distinct way. This comparison to original architecture in mind, it is important to consider the ways in which courts have construed the concept of originality. For example, in Roth Greeting Cards v. United Card Co., the Court held that when a total concept is the same, copyright may be infringed. This holding is significant because it implies that designs that, as a whole, are too closely identical to another design, can still be deemed to infringe upon the first design’s copyright even if there are small differences between the two (namely fabric or threading).If these “prerequisites”—designed to keep objects with utilitarian characteristics from receiving the benefit of copyright protection—can so easily be forgotten when it comes to architectural designs, why should critics constantly cite them as unavoidable bars against giving copyright protection to fashion

designs? Clearly, the legislature has begun to realize the artificiality of the art-utility distinction underlying America’s intellectual property regime and started to carve out specialized exceptions to this general rule. CONCLUSION As this Note has demonstrated, America’s current intellectual property regime unfairly forces unique objects like fashion designs—objects that possess both utilitarian and artistic components, and which may appear more utilitarian or artistic depending on a context-specific analysis—to “chose a side” on the art-utility spectrum in order to receive some form of intellectual property protection. Once a fashion design is submitted for either patent or copyright review, the design’s unavoidable artistic or utilitarian components stand as effective bars that prevent the design from actually receiving the desired protection. Given that both the historical underpinnings of American intellectual property law and the recent amendments to the Copyright Act of 1976 expose the artificiality that underlies granting intellectual property protection is based on such a rigid framework, it is necessary for lawmakers to abandon the art-utility dichotomy and allow fashion designs, much like architectural designs, to receive intellectual property protection. A brief analysis of the Copyright Act of 1976 and the changing norms of international custom and technology reveal that extending copyright protection to fashion designs is both workable and necessary. Intellectual property is concerned with protecting objects that are either useful or artistic. Fashion designs, works that have far reaching effects on American lifestyles, culture, and economy, should not be denied this protection because they are both. M.C. Miller M. C. Miller, Copyrighting the “Useful Art” of Couture: Expanding Intellectual Property Protection for Fashion Designs, 55 Wm. & Mary L. Rev. 1617 (2014), http://scholarship.law.wm.edu/wmlr/vol55/ iss4/7

In the words of...

PRA Personal Blog ppl knocking eachother off lol

Followed by timblanks, iamnaomicampbell , alessandromichele + 120k more

@DIET_PRADA

ADA TM

In the words of...

christopherkane

celine celine

3A.

robertocavalli

1A.

2A. 42

@DIET_PRADA

moschino

marahoffman

3B.

publicschool

1B.

Answer key: 1. Left; Celine Resort 2016, Right Mara Hoffman RTW Fall 2017 2. Left: Roberto Cavali, Right: Public School PF17 3. Christoper Kane Fall 2015, Moschino Resort 18

2B. 43

In the world of...

â&#x20AC;&#x153;Call it out, Call it out, Call it out,

Diet Prada is not going to let anyone get away with coping. Diet Prada does not like that,â&#x20AC;? Naomi Campbell said during a recent Instagram Live. What the industry has to say about its newly annointed fashion police.

@DIET_PRADA

In the words of...

“Diet Prada, a must-follow for fashion lovers, has become a runway referee that calls out designers for, as its bio says, “knocking each other off.” Diet Prada’s razor-sharp references indicate that its founder is a fashion historian through and through, and its no-holds-barred approach makes it clear that no one in the industry is safe. So who’s the brains behind the blows? We may never know, though this much has been revealed: it’s a fashion insider who prefers to remain anonymous.” Alexa Tietjen for WWD “Inspiration or copy? Internet users are being asked to make the decision. The topic is being presented by Diet Prada, an Instagram account which has made design

past. They hope to shift from Instagram to visual essays soon. “It’ll be really great for talking out my ideas,” they explain to i-D. Below, they discuss the demands — and career risks — of running a secret Instagram account and what makes fashion so rife with appropriation and plagiarism. André-Naquian Wheeler for i-D Magazine “They say imitation is the best form of flattery but I’m sure these hardworking designers think otherwise. In the age of social media, it is almost impossible for copycats to get away with stealing ideas. Netizens aren’t afraid to tell it like it is and somehow get justice for the original artists. Two people in particular are

legitimately fear the loss of advertisers. The duo side-track this problem through utilisation of a free public social platform, like Instagram, that allows them to connect with millions of users that can access their content at any time, provided they have internet access. Whether their budding friendships with the brands will impact the objectivity of their content remains to be seen, but so far Diet Prada is a no-cost platform for fashion criticism that whilst original, will ironically, have copycats.” Asbos Magazine “The anonymous account basically serves as the fashion police, calling out designers for ripping off creations of their peers, not without a

“...Please say sorry to me!!” Stefano Gabbana, in response to a D&G targeted post

comparisons its thing, highlighting publicly the lack of originality from certain designers in naming (and shaming) the most obvious copycats seen on the recent runways.” Chenu Alexis for Fashion Network “That’s what makes the account @dietprada a delight for fashion nerds. It’s a collection of all those “I think I’ve seen this before…” runway moments, pairing familiar-looking pieces with their alleged inspirations. The account was not born out of ill-intent intent, however. The anonymous creator of @dietprada works in the fashion industry, and the account is simply a natural extension of their obsession: studying fashion history to understand how the trends of today come from the 46

doing away the filter and posting for the world to see.” Tisha Ramirez for Inquier “Darling, I make this job from 32 years, we made all this world in the ‘90…. so, if you are ignorante is much better for you don’t say anythyng about this image… Gucci copy us in many different way!!! This is one of… please say sorry to me!!”...”@diet_prada dear you need to take fashion lesson in some school before to speak information is the top in fashion history” Stefano Gabbana In Response to a D&G targeted post “Their truth-to-power assessments of major brands is a practice that is avoided by most publishers, who

touch of sass.” Margraux Meisel for Nylon “NO ADVERTISERS MEAN NO FILTER.@diet_prada is the Gossip Girl of the fashion world. The anonymous Instagrammers (two people run the account) are fast gaining followers with their growing stack of receipts about “ppl knocking each other off.” Daniel Geldenhuys for Spree ‘Whether or not you like artificially sweetened goods, we guarantee you’ll like the Instagram account Diet Prada. The account started in 2014, and is really a grand theft fashion series with all eyes focused on who’s ripping of who in the industry. And in an industry rife 46

@DIET_PRADA

“Why on earth have you waited for Diet Prada to denounce possible plagiarism between creators? Because when we open - today again! - the pages of a fashion magazine, or when one goes through well established media forums, fashion critics often seem to want to annoy anyone. The fear of losing an ‘advertiser’ if an article is too hostile has often silenced the feathers of fashion. We bet that with the emergence of future Diet Prada through social networks, the media will remember that their strength lies in an objective analysis, including in fashion.” Steemit “Diet Prada is hilarious. I look at their page from time to time. I think

Instagram account publicizing these instances and engendering a muchneeded debate from their followers about where we draw the line. With originals on the left, and the accused plagiarist on the right, Diet Prada is the online authority on who’s ripping off who. The freefall discourse that lives in internet comment sections has people making cases for both sides, and it’s seen Rihanna’s core fanbase turn ugly when Diet Prada noticed a very sus similarity in some art direction for Fenty Beauty.” Max Grobe for Highsnobriety “DESIGNER BEANS are being spilled across every sector of fashions multi billion-dollar industry with its current (and not so clean)

be heard.” Jenni Sellan, fashion writer “LOL” Lee Oliviera, photographer and stylist “Hell hath no fury like a fashionista scorned – and whoever p*ssed off Diet Prada needs to apologise, now. Fighting back against facsimile fashion with an acerbic attitude and a sartorialist’s whit, the faceless social media page has become a terrifying enemy to the everyday designer –pointing out the obvious catwalk copy and pastes that so freely go unchallenged. A vengeful attack on the status quo that treads the line between hilarious trolling and cutthroat callouts,

“A vengeful attack on the status quo that treads the line between hilarious trolling and cutthroat callouts, the unvarnished commentary that followed SS18 left brands looking over their shoulder as claims on provenance became the encore heard across the globe.” they have me on it sometimes, too. It’s funny. I mean, listen, fashion should be fun. Fashion is full of references. I think a lot of younger people don’t really understand the influences that came from a long, long time ago. What they see is probably limited to the last three seasons. Hopefully, with Instagram, people are starting to unearth more and letting people learn more about where the origins of everything are.” Jason Wu, Designer “While theft in fashion is not a new concept, access to decades of online archives has allowed some eagle-eyed fashionheads to call out this copycat culture and hold idea-theives accountable. Diet Prada began in 2014 as an anonymous 47

reputation being exposed by those with an eagle eye and a full cup of courage.Fashion has found a multitude of new voices and naming & shaming is trending high. The source? Diet Prada. Surprisingly it’s not all about the haters right now but rather fashion industry insiders unafraid of creating a little disruption for the greater good of the industry Insta heavy weights @ diet_prada may not have millions of followers (yet) on Instagram, their reach is influential. We are experiencing a time where every facet of the fashion industry is well and truly being called to clean up its act and its nothing short of brilliant to see these emerging industry influencers providing a pathway for the once silent voices to

the unvarnished commentary that followed SS18 left brands looking over their shoulder as claims on provenance became the encore heard across the globe. A double-tap delight for any fashion nerd, Diet Prada seems to know more about the inner workings of the fashion world than even some of the most schooled Vogue boffs.” WearVaugh.com “...This account exposes high-end designers who seemingly spend their time unceremoniously ripping each other off. And for an industry that spends a lot of time ribbing Zara for doing the same thing, it’s an interesting (and occasionally dangerous) perspective” Bianca O’neill, Fashion Journal 47

In the words of...

Who is Diet Prada? The rise of Diet Prada. In their own words.

@DIET_PRADA

@Diet_Prada has become one of the most prominet voices standing up against plagarism in the fashion industry. By creating a platform that calls out copycats in the way the law doesnt, they are hitting the copiers where it hurts, their consumers. They are going against the notion that blatant plagarism is just ‘something that happens’ in the industry and standing up to the brands who think they can get away with it. The two anonymous founders of Diet Prada in their own words. Speaking to Highsnobiety So…who are you? “We like to think of ourselves as the love child of Tim Blanks and Cathy Horyn. Fashion critique runs in our blood. Together, we’ve

proven success, then you’re into theft territory. Case in point: the J.W. Anderson Pierce bag detail that he ripped from Hermes.” Why do you think we see less original design that we did 20 years ago, is the internet inhibiting our creativity? “A combination of just far too much information available combined with the volatile tides of retail. Nobody is taking a chance on unproven ideas. It can be hard to sit down and force yourself to design from scratch or a concept without pulling references from other brands but it can totally be done!” You called Virgil Abloh a luxury knock-off business, do you think

place. Margiela said things with his designs, Virgil “says things”. There’s also a homogenization in design right now because everyone is looking at the same designers.” As nearly all good design drips down to a knock off in a high street store, do you think copying in fashion in inevitable? “Copying is definitely inevitable but it doesn’t mean consumers have to give into it. 90% of the people shopping at Zara probably don’t even know they’re buying a knockoff. When good designs are rendered in cruddy materials they cease to be a good design anyway. We choose not to focus on fast fashion chains like Zara and H&M, because knockoffs are their business

“If you’re trying to keep the reference quiet and cash in off of someone else’s proven success, then you’re into theft territory.” @DIET_PRADA worked within the fashion industry in several different capacities, so our scope of view is pretty wide.” What provoked you to start this account? “We were working together at one point and in our research, kept seeing copies over and over again. We would do these live roasts of collections and thought it was lol enough to put online.” How do you decide when something is theft and when it is “inspiration”? Who are the worst offenders in your opinion? “When it’s from a place of love (and credited) its inspiration. If you’re trying to keep the reference quiet and cash in off of someone else’s

there is some self-awareness of this on his part? Is it just the zeitgeist now to sample something that came before you? “We call it luxury knock-offs because he presented a pretty dramatic shift in aesthetics this past season. He’s created an undeniably powerful image, but there’s often a big disconnect when you see the general public wearing it. Every designer has to grow up at some point. Some dig deep to find something unique and some just turn to something that’s been done before. In referencing some of the masters like Margiela and Lang (an influence can’t be denied right now), Virgil’s designs fall a bit flat as he doesn’t have the same intellect. It’s all coming from a totally different

model…there’s nothing surprising or interesting when you find their copies. It’s when other luxury or high-end brands pretend to have an identity or point of view, but are really just piggybacking on someone else’s aesthetics. The copycat culprits also change with seasonal or macro trends. Often when a new wave ushers in, the “me too” brands grapple to find a strand in their DNA that aligns with the current movement and then basically become them. You saw this when Pierpaolo Piccioli and Maria Grazia Chiuri debuted the new Valentino, Phoebe Philo at Celine, and you’ve been seeing it for a while now with Vetements and Gucci.” Finally, what do you think designers should do when they see their work 49

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being ripped off? “It really depends on the situation, but they can always reach out to us! If it’s valid we’ll post it. Recently we found out that Valentino did the right thing and recalled a set of rings that were copied from JESSIE V E after a mini grassroots campaign on Instagram. Copyrighting in fashion design is notoriously difficult, so we’re hoping in some small way that we can call greater attention to the issue through social media.” Speaking to The Cut What first inspired you to start this account? We were both working together and looking at runway shows all the

experience coupled with our semiphotographic memories leads us to finding a lot. Now that our fan base has grown so much, we’re lucky that a lot of our followers send us submissions. We love them and have been super impressed with how passionate and loyal they are. They’re #DietPradaDetectives. How would you describe your role in the fashion space today, as you gain more of a following? What’s your goal? We’ve been called the ‘new critics’ by a few people now, and we think that’s great. The old system is so broken, with reviewers having been banned from shows; it sometimes feels like an industry-imposed freespeech ban. I also think we provide

How would you define the difference between an homage, copy, and cultural appropriation? We feel that to be an homage it needs to come from a place of love, and better if they credit the inspiration. Copies generally have a commercial air around them; you know they did that screen tee or puffy sleeve dress because they saw other brands having success with it and they want to cash in too. Cultural appropriation is a whole different beast — you get into looking at levels of society and where people have been oppressed; that’s often at the root of it. It’s especially tough when people use cultural references and claim another inspiration … If you’re going to use indigenous artisan work as inspiration,

“Diet Prada is modern in that it democratizes the critic role.” time. We’d crack jokes with each other about how similar some looks were, and thought it was funny enough to try and put it on Instagram. When it came time to think of a name, Diet Prada came easily to us. As huge fans of Prada since ages ago, it was our homage to the brand for always leading innovation and creativity. The “diet” part pokes fun at the copies that we consider “light” versions of the original. What’s your background in fashion? How have you retained such a memory for so many looks? Between the two of us, we have a combined education and professional background in both fashion design and history. We’ve been in the industry for about a decade, so 50

some comic relief and entertainment in what can at times be a very monotonous industry. On a more serious note, we hope our perspective will cause a shift in designers and fashion conglomerates to re-analyze the product they’re making. Creativity should always come first. How do you think social media has shaped the role of the fashion critic? Social media has obviously given a voice to many people in all sorts of industries. We believe that if you have something unique and of substance to say, people will genuinely want to listen. Diet Prada is modern in that it democratizes the critic role. Not beholden to advertisers, we’re able to say what we really believe and this truth resonates a lot with our following.

we think you have to be especially diligent about crediting them. Why do you feel it’s important to call-out comparisons today? Because it’s unfortunate when genuine creativity is reduced to a lame knockoff. We’re not talking about the fast-fashion giants whose business model is exactly that. We’re talking about the designers and brands that are in a position to do something new, but choose to take the easy route by “designing” what they know is already cool or sells. Do you think people care more about calling out copies today than they used to? If so, what changed? Does social media have anything to do with it?

@DIET_PRADA

Yes, simply because information can be transmitted so quickly now. If people are passionate about something, they will go to great lengths to spread the message. It’s a social media grassroots moment! Are there simply more copies to be called out? If so, why? There always will be, because that’s just the cycle and demand of the fashion industry. Not to mention there are just SO many brands putting stuff out there now and getting industry coverage like they’re a fashion house, when they’re really just a jeans brand. Sadly, designers will always be told to keep churning out designs and to hit this or that note of the season in order to sell and be a part of the picture.

Speaking To i.d. Do you feel like giving credit to the past is an underappreciated art? Sometimes it feels like we’re too concerned with what appears to be “new.” That’s what I’ve been really trying to focus on the last couple of months: how quickly things are getting knocked off. Because it’s like I don’t care if someone copies a Balenciaga jacket from the 50s. It’s like, so what? That’s fair game. But when you copy Balenciaga’s men’s suits from last season… There’s just this trend, trend, trend thing that’s making everything really homogenous.

gradual. It’s just the way the commercial and the visual coincides in fashion that makes things so ripe for copying. How often do you find that race and culture fit into these copycat moments? Cultural appropriation is always going to be huge in fashion, but the black and street culture stuff is getting so derived right now. And it’s weird. Because it’s coming from these brands that are in Belgium and France — where their culture is not like that… at all. If a brand from New York does streetwear, I can at least be like yeah, okay, we invented it, so it makes sense for it to come out of here.

So for you there’s a distinction be-

“Just try to design with your heart. Find something you love and focus on it… nobody needs another trim market Gucci” DIET_PRADA What made you decide to work with brands like Gucci this season? How can this both help and hurt your image as a trusted critic? They came to us with an interesting angle and a fun opportunity. We thought their new approach to transparency in their inspiration was a step in the right direction. It definitely upset some of our followers who think we sold out, but most I think were genuinely entertained by our takeover and glad to see that one of the biggest luxury houses recognized us as a valid voice in the industry. You’d be hard-pressed to find anyone who would turn down the opportunity. Alessandro is also super chill and has a sense of humor about it all. At the end of the day, no one is dying and it’s all in good fun.

tween inspiration and plagiarism? I think you can look at an old vintage garment and draw inspiration from that. But sometimes the thinking is more XYZ sells, so if I copy them I know my stuff will sell too. They’re like, “I wanna make money, so I’m gonna copy it,” instead of, “Oh, this is good design so I’m gonna copy it.” What is it about fashion specifically that leads to so many copycat moments? I think because fashion is so visual and on a schedule the waves of copying are really noticeable. I feel like restaurants and other stuff get knocked off all the time, but it’s not like, “The restaurants for spring/ summer 18 are poke!” It’s more

http://www.dailymail.co.uk/femail/ article-4975126/Rodarte-accusedReem-Acra-copying.html http://wwd.com/eye/lifestyle/dietprada-instagram-11020510/ https://kulturehub.com/diet-pradainstagram-expose/ http://errordigital.com/diet-pradainstagrams-answer-to-brutal-truthson-runway-collections/ https://nylon.com/articles/diet-prada-instagram-fashion-police http://www.whowhatwear.com/dietprada-instagram-account http://www.craveonline.com/ style/1307731-diet-prada-puts-fashion-knock-offs-blast-instagram https://mic.com/articles/185861/ die

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diet_prada ”@vaquera.nyc started with the promise of bringing excitement and originality to NYFW... and then did this. Super specific @chanelofficial archive suspender/girdle/utility pant combo with a lil’ JPG cone bra action for good measure”

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@vaquera.nyc thanks @diet_prada we call ourselves fashion fan fiction for a reason recontextualizing iconic styles is the name of our game 53

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MINE

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@Diet_Prada: “OMFG VIRGIL CAN U NOT?? Design genius @virgilabloh takes a break from his busy luxury knockoff business to copy shoes from @elisavanjoolen , a prospective hire for an @ off____white footwear design position that curiously never materialized. After the @cesarepaciotti x @adakokosar copies, we’re left wondering if Virgil’s design team actually does anything. We hope they take a cue from the @maisonvalentino team and recall the style or cut the original designer a fat check. It’s time to recognize talent and give credit where it’s due.” 60

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“Diet Prada is not going to let anyone get away with coping. Diet Prada does not like that,”

“INSPIRATION”

VIRGIL ABLOH AN INVESTIGATION INTO ONE OF FASHIONS MOST INFAMOUS PLAGARIZERS, AND DEVOUT DUCHAMP FAN

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TSHIRT BY CREDITSUdemorum qua nemeri sententiur losterf icaesendam eti fursuam quius. C. 63

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DUCHAMP IS MY LAWYER 64

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R 65

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PREVIOUS SEASONS OF BALENCIAGA, ALEXANDER MCQUEEN, VIKTOR & ROLF, & JIL SANDER

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OFF WHITE

CALL OUTS CREDIT TO @DIET_PRADA

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“INSERT ORIGINAL IDEA HERE”

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“3 percent approach.” “Things are intriguing to me when theyʼre slightly edited, like these shoes,” he said, taking off one of his Nike Air Forces to show the crowd his design for the sneaker giant. “I was only interested in restraining myself, and only editing it 3 percent.” These “slight edited” Air Force One Nikes are the kind of “restrained” design that interests Abloh, who doesnʼt really want or need a completely new shoe in the market.

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Finding “inspiration” everywhere Recontextualizing Duchamps theory of Ready-mades into fashion, I found my inspiration in plain sight

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LOCK AS CLOSURE/ “STITCH” WITH ETCHING. Citing Duchamp and Virgil’s quote implying that duchamp gives him the legal argument to support his work.

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LOCK AS CLOSURE/ EMBROIDERY WITH COPYRIGHT SYMBOL. Would either have keys attached, be broken(cut through) or with keys attached and labeled. Symbolizes how us copyright laws are an insufficent protection for fashion

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Chain of Locks with keys as the â&#x20AC;&#x153;closureâ&#x20AC;?. Copright laws give the appearance of protection to young designers, its merly a facade. False sense of security

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Pins fashioned as links on barbed wire. For embroidery/ potentially on necklines + edges to â&#x20AC;&#x153;ward offâ&#x20AC;? predatory plagarisers. 97

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TESTIMONY OF JEFFERY BLANKS

Before the U.S. House Subcommittee on Courts, the Internet, and Intellectual Property U.S. House of Representatives Committee on the Judiciary Legislative Hearing On H.R. 5055: “To amend title 17, United States Code, to provide protection for fashion design” Washington, DC July 27, 2006 Mr. Banks. Good morning, Chairman Smith and Members of the Subcommittee. I am pleased to testify on behalf of the Council of Fashion Designers of America. I come to speak to you with over 30 years experience in the United States fashion industry, including working for Ralph Lauren and Calvin Klein, before starting my own menswear business at age 22. Much in fashion has changed during those 30 some years. For one, Fashion has grown into a very significant and important US industry, generating approximately $350 billion in the United States each year and supporting the printing, trucking, and distribution, advertising, publicity, merchandising and retail industries as well. And of course, all the industries which support the production and dissemination of men’s and women’s fashion magazines. Although New York is often thought of as the U.S. fashion capital because fashion is the 2nd largest money-making business in the city, after the stock market, with the exponential growth of America’s fashion and design industries other fashion centers have come into existence across the country--Los Angeles, Dallas, and Atlanta come to mind. That wasn’t the case 30 years ago, when most of the fashion in the United States was copied from the European fashion centers of Paris and Milan. Back then there weren’t multitudes of talented young American designers generating their own original designs as there are today. The fashion industry in the last few years in America has become a very significant influence in trends and the way the fashion industry is perceived by consumers. American style. American design. It has meaning. And it has value. This wonderful home-grown industry is really made up of thousands of American small businesses. We’re all entrepreneurs who pursue our 100

fashion with the hope of designing something that will catch on and capture the imagination of U.S. consumers. Success that starts in all of our individual design studios, grows opportunities all across the country . . . there are fabric manufacturers, printers, the people who produce paper for making patterns, the shippers who ship the merchandise, the truckers who truck, design teams, fabric cutters, tailors, models, seamstresses, sales people, merchandising people, advertising people, publicists, those who work for retailers. In short, this is a big employment business today. The other most significant change in the industry in the past decade is technological. Just as the internet has transformed our sister creative industries like music, books and motion pictures, creating opportunities as well as problems, it has transformed fashion and not always for the better. In the blink of an eye, perfect 360 degree images of the latest runway fashions can be sent around the world. And of course, they can be copied. And that copying, coupled with the importance of the fashion industry to America, is the main reason that I sit before you today. Fashion design piracy has become a blight that affects all who depend on the U.S. fashion industry. It robs American workers of their livelihood, which is why the CFDA is working in an alliance with industry partners such as Harper’s Bazaar and eBay, among others, to raise the profile of this massive problem. Other countries have recognized the problem and provided protection for fashion design to help counter design piracy. The United States is the only developed country that does not protect fashion in its laws. We want to thank Representatives Goodlatte and Delahunt for recognizing this inequity and introducing H.R. 5055, the Design Piracy Pro-

TIM BLANKS

hibition Act, to remedy it. We also want to thank Chairman Sensenbrenner and Representatives Coble and Wexler, among others, for cosponsoring the measure. H.R. 5055 would provide three years of protection to those designers who register their ORIGINAL designs with the Copyright Office. That is far less than the life of the author plus 70 granted to other copyrighted works. However, because of the unique seasonality of the fashion industry, we agree with Congressmen Goodlatte and Delahunt that a shorter term of protection is reasonable. That allows the designer time to recoup the work that went into designing the article and develop additional lines of ready-to-wear, etc. I will note, however, that in Europe most member states protect fashion for a term of 25 years, with registration. In Japan, it is 15. We believe that passage of design protection would be a powerful deterrent to the pirates. In fact, I question how many lawsuits for infringement would actually ever be filed. Since registration of designs is mandatory in order for design protection to be granted, and only original, noncommonplace designs can be protected, I believe that designers will register very selectively. And retailers have told us that if the practice of fashion design piracy was illegal, they wouldn’t engage in it. A law would have a powerful and much-needed effect on the market. THE ADVERSE IMPACT OF PIRACY ON AMERICAN DESIGNERS I have heard some question whether fashion piracy actually harms the industry. A few have even suggested that it may help designers to have their works knocked off. I would like to respond to those questions with an emphatic ``yes it does hurt the designer and the industry!’’ And no, far from helping the designer, design piracy can wipe out young careers in a single season. The young designers are the ones who are creating the new designs, which they have to have some way of protecting. Copying is stealing. As a movie and music aficionado, I would never dream of buying an illegal DVD or CD on the street. I respect the film and music industries much too much, and all of the people that work in them.

Piracy is taking somebody’s design, replicating it quickly, doing it so that nobody would know the difference between yours and theirs unless you are an expert at it, and sending it out as your own. That’s clearly wrong and American law must address it. The Congress has passed laws to protect against counterfeits. One in three items seized by U.S. Customs is a fashion counterfeit. Just this year, you made it illegal to traffic in the labels that are used in counterfeit goods. But a copy of a design is really a counterfeit without the label. If no design piracy existed, there would be no counterfeiting. Both must be addressed or else the small designer with no brand recognition is left defenseless to the problem of piracy, leaving only famous brands protected, and then only if the label is taken. The fashion business is a tough business. With each new season, designers put their imagination to work, and they put their resources at risk. When I started my business, I started with a five thousand dollar loan from my family. You never would do that today. It takes tens of thousands of dollars to start a business. And every season when you go out to create, if you’re creating original prints, original patterns, original samples that you have to go through trial and error, you are talking about thousands and thousands of dollars. Then if you go to put on a show, you can spend anywhere from fifty thousand dollars to a million dollars just to put on a show to show buyers and press what you’re creating for that season. So, before you have even received your first order, you’ve spent thousands and thousands and thousands of dollars. Whether you are an accessory designer or a star designer creating men’s, women’s, children’s lines, you spend many thousands of dollars before you see your first order. Some designers make their names in haute couture, where they sell a very small number of rather expensive designs. While the designs are high priced, the designer frequently doesn’t even 101

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Testimony of Susan Scafidi VISITING PROFESSOR, FORDHAM LAW SCHOOL, ASSOCIATE PROFESSOR, SOUTHERN METHODIST UNIVERSITY Ms. Scafidi. Thank you. Good morning, and thanks to Chairman Smith, Representative Berman, Congressman Delahunt, and all of the Members of the Subcommittee for inviting me to speak to you about intellectual property and fashion design this morning. Fashion designer Coco Chanel is sometimes quoted as having said, ``Protecting the seasonal arts is childish.’’ However, most people who repeat that statement seem to ignore the fact that in the 1930’s Coco Chanel herself joined fellow designers as a plaintiff in a landmark French lawsuit that shut down a notorious copyist and helped Chanel build the house that still bears her name. In other words, Coco Chanel was a smart businesswoman who knew how to tell the public what it wanted to hear, while using the law to protect her intellectual capital. This is the constitutional intent of copyright law, to promote and protect the development of creative industries by ensuring that creators are the ones who receive the benefit of their own intellectual investments. Of course, fashion designers create without the benefit of copyright law, but so would poets and songwriters if there were no copyright. It is what humans do. It is also the case that trends in fashion exist in every creative industry, including those supported by copyright. The problem today is that, as in other industries like music and film, the digital era has made pursuing a creative business without copyright protection even more difficult. Even Mr. Sprigman just admitted that technology changes things. A digital photograph of a new design can be uploaded to the Internet and sent to a knockoff artist halfway around the world before the model even reaches the end of the runway, as Mr. Banks pointed out. 102

It used to take months to copy a new style. Now it takes mere hours. That ecosystem has been upset. Creative design at all price levels is vulnerable to copying. H&M, a popularly priced chain that distributes trends to the mass market and is sometimes cited as an example of indifference to copying, was itself knocked-off and brought action last year under E.U. unregistered design protection. The United States should no longer be a pirate nation with respect to intellectual property, as we were in our early years. We are a global superpower and we work with fellow members of the G-8 group, the WTO, the World Intellectual Property Organization at their bilateral trade negotiations to promote I.P. protection, except in the area of fashion design. This is particularly surprising in light of those concerns that Congressman Goodlatte mentioned about counterfeit trademarks. After all, those fake trademarks have to be affixed to something, often goods created through design piracy. At this point in our history, America should not be a safe haven for copyists. The failure to protect fashion design is both inconsistent with our international policy and a disadvantage to our own creative designers, especially the young designers who represent the future of the American industry and who are particularly vulnerable to copying. Consider the example of Ananas, a 3-year-old handbag label. Its cofounder is a young wife and mother working from home, actually here in the Washington suburbs, and she has been successful in promoting her handbags, which retail between $200 and $400. Earlier this year, however, she received a telephone call from a buyer canceling the wholesale order. When she asked why, she learned that the buyer had found virtually identical bags in a cheaper material at a lower price. Shortly thereafter, the same designer looked on

SUSAN SCAFDI

the Internet and discovered a post on a message board from a potential customer who had seen one of her bags in a major department store, thought about buying it, but went home and on the Internet found a cheaper bag, a look-alike in lower-quality materials, which she not only bought but recommended to others. So Ananas is still in the business at present, but that loss of those wholesale and retail orders is a huge loss to a small business. As a law professor with a particular interest in unprotected areas of creativity, I have kept a file on I.P. in fashion design for almost a decade. I have a Web site, as you mentioned, thank you, dedicated to the subject. I also frequently speak with young designers who have been copied or who would like to proactively protect their work. One of the most difficult things to explain to those young designers is that U.S. law doesn’t consider fashion design to be worthy of protection. I hope instead to one day have the law behind them to deter copying in the first place and to protect them against design piracy when the need arises. So H.R. 5055, with its short-term, narrowly tailored protection for the fashion industry is, I think, a groundbreaking example of how copyright law can be narrowly tailored, and carefully designed to serve the creators and the public interest. In fact, this kind of short-term protection is exactly the model of copyright suggested by some law professors who have opposed this Subcommittee’s actions on other bills. I am surprised and disappointed that various individuals don’t believe that the fashion industry deserves even a minimal amount of protection when compared with other forms of creative expression. So I would like to thank and congratulate the Subcommittee on taking the issue of fashion design seriously and holding this hearing, and I look forward to your questions. Thanks. Before the U.S. House Subcommittee on Courts, the Internet, and Intellectual Property U.S. House of Representatives Committee on the Judiciary Legislative Hearing On H.R. 5055: “To amend title 17, United States Code, to provide protection for fashion design” Washington, DC July 27, 2006 103

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The Most Facinating Kind of Art: Fashion Design Protection as a moral right Excerpts from Katelyn N. Andrews* 2012 note illustrates why the quest for copyright protection is missguided

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Associate, Skadden, Arps, Slate, Meagher & Flom, LLP, J.D., 2012, New York University School of Law, B.A., 2009, The University of Georgia.

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In recent years, politicians, academics, and industry professionals have argued vehemently that copyright protection should extend to cover fashion designs, which are currently excluded under the “useful articles” doctrine. These arguments have proved somewhat successful, as a number of bills have been drafted to expand copyright laws to include fashion, most recently the Innovative Design Protection Act of 2012, and two congressional hearings have been held on the subject. None of bills, however, have managed to gain much traction in Congress, and progress appears to be stalled. My objective in this Note is not to examine the legislation that has been proposed, but to uncover why the supporters of fashion copyright have been so steadfast in their promotion of it. Copyright in the United States is built on economic principles and aims to incentivize innovation. It seems clear that from an economic perspective, copyright is unneeded to incentivize creativity in the fashion industry. After reviewing the legislative history and other arguments made by proponents of fashion copyright, a different picture emerges: supporters of fashion copyright view fashion as “art” and feel a sense of harm when it is cheaply or slavishly copied. Even if designers feel no economic harm from the copying of their creations, they are morally harmed by it. Perhaps then moral rights law, not copyright, provides the appropriate theoretical framework in which to analyze the extension of further protections to fashion design. The stalled debate over fashion copyright might be revitalized by discussing design protection in the more theoretically relevant framework of moral rights laws, which are concerned with reputational—as opposed to economic—harms. INTRODUCTION In recent years, a debate has reemerged in Congress, in academia, and in the fashion industry over the extension of copyright-like protection to fashion design. The proponents of increased protection for fashion design argue that copying technology—particularly the speed with which images of designs from runway shows can be sent around the world via the internet—has changed so drastically in recent years that designers are suffering unprecedented harm that must be rectified by copyright-like protection. On the other hand, opponents argue that increased protection is unnecessary because the American fashion industry—a $340 billion indus-

try—is thriving, and therefore, even if copying has Increased in recent years, designers are not economically harmed by it. Supporters of “fashion copyright” have introduced two design protection bills into Congress: the Design Piracy Prohibition Act (“DPPA”)in 2006, which was revised as the Innovative Design Protection and Piracy Prevention Act (“IDPPPA”) in 2011 and re-introduced in September 2012 as the Innovative Design Protection Act of 2012 (“IDPA”). This bill would amend the Copyright Act to extend sui generis, copyright-like protection to fashion design. The primary proponents of increasing intellectual property protection for fashion design have (unsurprisingly) been fashion designers, represented by the Council of Fashion Designers of America (“CFDA”), with the assistance of a number of law professors. The greatest roadblock they have encountered in arguing for increased protection is convincing lawmakers that there is a reason to alter the status quo. American copyright law is generally seen as a means by which to incentivize investment in creative products by “securing for limited Times . . . the exclusive Right” to create and distribute copies of those creative products so that initial investments may be recouped before other copiers enter the market. In the absence of copyright, there would be a dearth of investment in the creative goods—a market failure that can be cured by copyright.19 Copyright protection currently excludes fashion design under the “useful articles” doctrine, which bars copyright for any object whose design features cannot be separated from its utilitarian aspects, either physically or conceptually. Although trademark laws protect brand names and some designs enjoy trade dress or design patent protection, the fashion industry generally operates under a low-IP regime. The low-IP regime has existed since the beginning of the American fashion industry and, as many opponents of design protection have pointed out, the industry has thrived both creatively and economically in the absence of copyright, rather than crumbled as economic theories might predict. Thus, there is little evidence of the type of market failure in the fashion industry that copyright seeks to remedy. Why then have so many members of the fashion industry continued to argue for increased intellectual property protection for fashion design? If copying 123

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does not financially harm designers, then there must be non-economic motivations behind their quest for increased design protection. During recent Congressional hearings on the DPPA and IDPPPA, advocates of design protection, while attempting to tailor their arguments to fit an economic theory of copyright, revealed that they have been strongly motivated by morals-based reasoning that builds upon the unique contemporary relationship between fashion and art. The proponents of increased design protection have been correct to recognize the striking similarities between fashion and art in contemporary culture. Not only do fashion designers and artists collaborate and inspire each other,28 the practices and business models of the fashion and contemporary art worlds are hardly distinguishable in modern society. Fashion designers are widely recognized and discussed as creative geniuses, their work is examined and analyzed in art-historical frameworks, and their designs are exhibited internationally in museums alongside prized art objects. Simultaneously, artists, particularly since the 1950s, have incorporated the mass-production, business-minded, and branding practices of the fashion industry into their work at least in part as a way to challenge the definition of art. It is not economic harm, but the sense that fashion is art and thus deserves intellectual property protection that has motivated modern proponents of increased design protection. They desire moral, not economic protection. However, U.S. copyright law generally rejects morals-based justifications in favor of economic, utilitarian ones. It makes little sense to extend an economic right to fashion designers predicated upon a desire for morals-based protection—especially without explicit recognition of these motivations. Visual art, unlike other copyrightable goods, does receive special morals-based protection under the Visual Artists Rights Act of 1990 (“VARA”) and various state moral rights laws. The moral rights granted under these statutes seek to protect the reputation of an artist by preventing others from modifying or misattributing his works.37 If proponents of increased design protection desire prevention of copying predicated on morals-based harms, that position and related arguments both for and against such protection should be discussed openly. 124

Discussion of the extension of increased design protection in the fashion industry should be considered and discussed under a moral rights, not copyright, framework. SHORTCOMINGS OF THE ECONOMIC ANALYSIS Under current U.S. law, fashion designs, unlike many other creative goods, can be freely copied. Although economic theories of copyright predict that in the absence of protection against copying, investments in creative goods will not be recouped and will result in a lack of incentive to create, the American fashion industry has continued to produce creative goods and to thrive financially in the absence of copyright protection. This “low-IP equilibrium” is explained by the economic model, under which there are certain circumstances that may facilitate market stability in creative industries that lack copyright. First, if the copying of creative works takes a significant amount of time, and demand for the work decreases over time, the original producer of the work will enjoy a period of market exclusivity until copied works are available. In some instances, this first-mover advantage provides enough economic compensation to incentivize creation in the absence of copyright. Second, if copies are not perfect, original creators will continue to enjoy economic success by selling their products to consumers who do not wish to buy low-quality substitutes. FASHION AS ART If copying in fashion design does not cause industry-wide economic harm at a level that would indicate a market failure necessitating correction through copyright protection, then a logical question arises: Why has the economically thriving fashion industry decided to wage this copyright war? I believe the answer can be found by stripping away the unconvincing economic arguments that disguise the thrust of the industry’s real argument— that fashion design is “an art form,” an extension of a designer’s creative soul, and thus deserves some form of protection. The problem with copyright law according to Women’s Wear Daily, the leading industry publication, is that its “protection does not cover apparel because

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articles of clothing are currently considered ‘useful articles’ as opposed to works of art”69—an apparent “loophole in copyright law.”70 Implicit in this statement is the faulty assumption that copyright protects “works of art,”71 and that if fashion can make the leap from being considered a “useful article” to a “work of art,” it too can enjoy some sort of copyright protection. The assumption that fashion design should receive copyright protection if it can be seen as “art” is not only an idea popularized by the fashion media but is also one regularly invoked by supporters of fashion copyright, including in the congressional debates on the DPPA and IDPPPA. For example, when the IDPPPA was passed by the Senate Judiciary Committee in December 2010, the manager of government relations for the American Apparel and Footwear Association approvingly remarked: The industry will finally have the ability to protect the truly original, artistic pieces of fashion that presently do not have any protection. This bill does a great job of drawing the line between what is useful and artistic. For those who do truly original art in fashion, they will have an opportunity to gain protection.72 Earlier, in the 2006 hearing on the DPPA, Congressman Issa argued to his peers that “dresses are clearly, let’s be honest, it’s art. . . . [and thus] [c] learly there is a constitutional obligation for us to [protect] these creations.” In the 2008 DPPA hearing, designer Narciso Rodriguez argued that over the last century “fashion design has become an art form,”74 and Professor Scafidi maintained that one reason fashion deserves protection is because it is “now recognized as a form of creative expression,”75 and that French recognition of design protection indicates “[t]he formal recognition of fashion design as an art form” in France. One could easily dismiss this line of reasoning as unprincipled by pointing out that copyright law does not seek to protect “works of art” but instead protects economic incentives when necessary to generate investment in creative goods that benefit the public good. Sometimes this results in the protection of “works of art.” Although that may be correct as a matter of copyright jurisprudence, it has been unsuccessful in discouraging the proponents of design protection. The belief that fashion is

art is deeply held, and has developed over decades of interaction between the fashion and art worlds. Beginning in the 1960s77 and increasing rapidly over the past twenty years, simultaneous changes in the art world and fashion industry have led to an increased sense among designers, members of the fashion community, and many members of the fashion-consuming public that fashion, if not “art” in itself, is so closely related to and intertwined with “art” that it should receive—and in fact deserves—the same types of legal protections as art. Discussions of increased design protection should not be ignorant of the contemporary relationship between fashion and art and the resulting sense that fashion designs should receive morals-based protections in a way similar to art. In the sections that follow, I describe the ways in which fashion is more art-like and art is more fashion-like than ever before, as I believe it would be naïve to ignore these developments in crafting appropriate intellectual property protection for fashion design. MORAL RIGHTS IN FASHION DESIGN Although the assertion that fashion is art may be misguided, or at least an incomplete solution to problem of design protection, it is undeniable that fashion and art today have a synergistic relationship. When viewed from this perspective, it is obvious why fashion designers have felt compelled to demand increased protection for their work: their beloved creations, which they think of as art, which they created with the love and devotion of an artist, which have been critically reviewed like art, and which have been displayed in museums like art, are treated in a radically different way under U.S. law than art. In an effort to receive commensurate treatment with art, designers have petitioned Congress for copyright protection, but are not in need of the economic-based protection that copyright provides. Instead, they feel a sense of personal harm when their “art” is cheaply and slavishly copied. Thus, what the proponents of fashion copyright really desire—and have essentially been arguing for—is a moral right to protect against the reputation-based harms that are felt when designs are copied. Moral rights laws are generally designed to protect artists’ reputational interests in their works and are 125

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often premised on a personhood theory of protection,134 which posits that works of art embody an artist’s “individual essence”and are part of her “very identity.”Therefore, in order to fully protect an artist’s interests, we should recognize rights that “preserve the bond between the artist and her work.”138 The U.S. grants moral rights under the Visual Artists Rights Act of 1990,139 which protects visual artists’ rights of attribution140 and integrity,and many states grant similar moral rights protection. This sense that the work of an artist is an extension of the artist himself and is deserving of special, noneconomic protection can be seen clearly in the Congressional debate over the DPPA and IDPPPA. Designers have not been shy to share heart-wrenching stories of their sense of personal attack in arguing for increased protection. They convey a sense that their creative works—thought of as “represent[ing] a complete embodiment of the internal self” 143—should be protected against unauthorized use because that would amount to a personal assault on the designer himself. For example, Narciso Rodriguez, who had the great fortune of designing the bridal gown for Carolyn Bissette’s wedding to John F. Kennedy, Jr., described the design as follows: “I designed something with great love for the most important person in my life. . . . You know, it was a very personal thing for me, that dress.”The dress was subsequently copied many times over for American women who wished to emulate the enviable Mrs. Kennedy’s style. Mr. Rodriguez provided this story to Congress as an example of the way he was harmed in the absence of increased protection for fashion design, but he went on to say, “I never looked at it like something was stolen from me because I would have made that dress anyway.”146 Mr. Rodriguez’s statement perfectly illustrates the tension of extending copyright-like protection to design under a utilitarian, economic theory of copyright. He loved the dress and he loved the woman for whom he designed it. He did not need an economic incentive to create it, but he still felt harmed when it was copied. It could be said that the design “embodie[d] an intrinsic dimension” where his “creative impulse… eminat[ed] from inner drives that exist in the human soul . . . [which] do not depend upon external reward or recognition but instead are motivated by 126

. . . the creation of works with a particular meaning or significance.” The intrinsic dimension of Mr. Rodriguez’s creativity is perfectly illustrated by his description of copying as “theft” and that “to steal something . . . [is] to copy my DNA and diffuse it.” It is not just designers who have invoked this personality theory in their arguments for design protection. Professor Scafidi, the fashion industry’s staunchest supporter in legal academia, has argued that fashion is “creative expression” and should thus be protected because “creative expression” is “exactly what copyright is supposed to protect.”In other words, fashion design warrants protection not because protection incentivizes design, but because all creative expressions of an artistic soul deserve protection.Congresswoman Maxine Waters voiced her opinion that the copying of Diane von Furstenburg’s wrap dress in “cheap material” is “an insult to the work she has done” noting that “there is probably something called pride in your work” that shouldn’t be “undermined by those who [copy] poorly.”Congressman Waters clearly sensed the moral rights undercurrent of the congressional hearing and felt that Ms. von Furstenburg deserved some sort of reputation-based right to protect the valuable creative energies she has expended in creating the wrap dress that is synonymous with her name It is evident that advocates for increased design protection have been motivated by the sense that fashion is art to argue—albeit deceptively—that it deserves morals-based protection equivalent with that of art. Arguments over design protection that focus on the economic aspects of copyright law are inappropriate in the contemporary fashion industry. Instead, the debate should center on the moral rights protections that designers seemingly desire. But the question remains as to whether moral and reputational considerations can adequately justify the extension of copyright-like protection to fashion design, or if not, whether some alternative scheme might be devised to protect personality and reputational interests of designers. Instead of attacking the argument that copyright is economically necessary for the fashion industry, opponents of design protection should rebuke the arguments that fashion should receive commensurate protection with art

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or that any consumer goods should receive moralsbased protection. CONCLUSION In the end, the contemporary quest for copyright protection undertaken by fashion designers and other industry supporters is misguided. The American fashion industry as a whole has not suffered any detectable economic harm as a result of the lack of copyright protection, and modern technological changes have not improved copying techniques so drastically that there is reason to believe that the long-standing low-IP equilibrium has been upset. However, economically successful designers have continued to argue fervently for increased protection. Upon further examination of their arguments, it is clear that in attempting to curtail copying, they seek to redress a morals-based harm. Their sense of harm when their designs are copied is magnified by the synergistic relationship between fashion and art that has recently emerged in the U.S., which has led to a growing perception that fashion is art. When comparing their work to that of their peers and collaborators in the art world, fashion designers have been shocked to discover that U.S. law treats their precious work much differently than that of the artists. This has led designers to seek copyright protection in their work. However, their harm has little basis in economics and is instead predicated upon a sense of personal, morals-based harm that is felt when the integrity of their designs are compromised. The debate over fashion design protection should focus on moral and reputational considerations outright, instead of veiling them in economics-based arguments favored by copyright policy. If it is moral rights protection that the fashion industry really desires, then a morals-based regime should be on the Congressional docket instead of the pending quasicopyright proposal that has failed to gain significant legislative support. Associate, Skadden, Arps, Slate, Meagher & Flom, LLP, J.D., 2012, New York University School of Law, B.A., 2009, The University of Georgia.

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Fashionâ&#x20AC;&#x2122;s Moral Dilemma: Exploring How a Lack of Moral Rights in the United States Disproportionately Harms Emerging Fashion Designers Excerpts from Anuli Akanegbuâ&#x20AC;&#x2122;s paper

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ABSTRACT The fashion industry shows the highest revenues of all creative industries exceeding those of books, movies, and music combined. However, in the United States, fashion designers are not granted the moral rights necessary to protect their works from being replicated by pirates. The objective of this study is to assess whether legislation such as the Innovative Design Protection and Piracy Prevention Act (IDPPPA) will effectively protect the work of emerging designers from being misappropriated. In addition, this study compares and analyzes the artistic qualities of the creative process of fashion designers and visual artists in order to determine whether designers should be treated as artists whose medium deserves protection. Even though garment designs provide an underlying utilitarian function many fashion designs have crossed into the realm of wearable art. As a result, the primary value of these garments lies in their appearance as opposed to their inherent utility. This analysis draws from a series of interviews with art, fashion and legal professionals as well as close observations of visual artists and fashion designers. Previous works evaluating fashion law have focused on the affect of legislation to welltrademarked luxury brands. This study determined that the best way to protect the intellectual property of emerging designers is not through a passing of widespread legislation, but through the employment of “open source” licenses that contain attribution authorship to the original designer and acknowledge fashion designers as artists with sui generis moral rights. INTRODUCTION Our fashion choices are a reflection of our values. As our most immediate visible mark of selfexpression fashion allow us to relate to society. The fashion industry is a unique industry that bridges a variety of fields that represent both the practical and the aesthetic. It is one of the world’s most important creative industries showing revenue that exceeds those of books, movies, and music combined.1 The global fashion industry (including apparel, footwear and accessories) is estimated to be worth $1,306 billion. In the United States alone it is a $350 billion industry.Despite its major economic presence fashion design in the United States

is not covered by the same Intellectual Property (IP) protections afforded to other categories of creative works or art in other countries. America’s lack of protection for fashion designs has allowed it to become a safe haven for design pirates. Copyright law protects artistic creations-including literature, song, dance, sculpture, painting, photography, movies, and computer programs-but not “useful articles” like automobiles or clothing.4 Copyright restrictions for fashion designs in the United States disproportionately harms emerging designers since very few small businesses can compete with those who steal their intellectual property. The current copyright law system fails to see the value in protecting the moral rights of emerging fashion designers. In addition, it fails to understand the qualities of fashion that make it an artistic medium that deserves protection. FASHION AND ART Fashion designers are not so inherently different from traditional visual artists. Both express a desire to communicate an idea. Fabric serves as the primary medium for fashion designers while visual artists have expressed themselves through mediums such as canvas, clay, and bronze. Fashion designers and visual artists are influenced and inspired by the world around them. In fact both fashion and art reflect changes in contemporary culture. Coco Chanel once said, “Fashion is not something that exists in dresses only. Fashion is in the sky, in the street, fashion has to do with ideas, the way we live, what is happening.” The late Alexander McQueen is a prime example of a designer who took inspiration from contemporary culture to create. It is said that an aspect of one of his collections was inspired by a green sweater he saw a character wear on the show Friends. McQueen has been referred to as an “artist whose medium of expression was fashion.” Although there is an underlying utilitarian function to clothing, creativity and originality has become a primary focus of fashion as many designers have crossed the traditional boundaries of wearable apparel into wearable art. Haute couture creations are examples of wearable art because they are created more to serve as an embodiment of the design statements made in the more toned done 137

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ready-to-wear line. Section 101 of title 17, United States Code defines a “work of visual art” as (1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or (2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author. By this definition mass produced fashion designs cannot be considered “works of art,” but, haute couture creations can under the premise that they are “fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author which in this case would be the garment’s label. However, since fashion design including haute couture is not subject to copyright protection under this title it is not currently considered a “work of visual art.” Copying versus Inspiration Fashion is a trend-driven industry that is strongly influenced by social-cultural changes. The fashion industry thrives on change, which is why trends seem to change so quickly. What’s “in” this season is “out” the next. Even in art one movement makes way for the next albeit at a less rapid pace. Like art, fashion designs have become popular because of the selection and arrangement of their materials, style, and quality. It is common practice in both realms for creators to take inspiration from the old to make the new. In fact, all creative work is derivative work. Fashion no longer “trickles down” from luxury brands to the masses since inspiration now comes from everywhere. High culture, popular culture and subcultures are the primary sources of inspiration for fashion designers. They draw freely upon ideas, themes, and styles available in the general culture to produce new works. The Chanel knit jacket is an example of a style that has been reinterpreted by numerous other designers over the years. However, where is the line 138

drawn between taking inspiration from another creator’s work and copying another creator’s work? Now more than ever design copying has to be distinguished from other forms of relation between two designs such as inspiration, adaptation, homage, reference, or remixing. In an interview with the researcher of this Article, Lacey Wheatley, designer of Maryland-based line Kalivoda distinguished the differences between copying and the other forms of relation as such: “Copying is a literal knock-off of someone else’s work, with an inspired piece, the designer needs to put their own spin on it. For example, edit the neckline, hemline, change the fabric, and add new design elements. I think its best for an inspired garment to only host a small sliver of the original garment.”Creativity propels us forward as a society, but we need to balance the public’s ability to consume creative works with the original creator’s desire to be recognized for their work. Moral Rights in U.S. and Europe The primary difference between fashion and art in the United States lies in their copyright protection. Current copyright law protects artists from knockoff art, but does not protect fashion designers (especially emerging designers) from knock-off designs. Intellectual property law analyzes the relation between the individual and the collective in the production and consumption of creative work. The claim of copyright is primarily based on a moral right of the creator of a work and a society’s desire to reward this labor. In this case, copyright serves to legitimize the artistic endeavors of the designer. Moral rights include the rights to: (a) be identified as the author of a work, (b) object to derogatory treatment of a work, (c) publish a work anonymously or pseudo anonymously, (d) the right to not be attributed for works that you no longer wish to claim. The concept of moral rights for artists originated in France and has a long tradition of recognition in civil law countries. In the civil law world, moral right (droit moral) and copyright are perceived as natural or inherent rights of creators in the products of their creative efforts. Contrastingly, the U.S. system encourages industry as opposed to individual rights.

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In Europe, both individual European countries and the European Directive on the Legal Protection of Designs protect fashion designers. France holds the strongest legal protection for fashion designs in the world and subjects copyright infringers to both civil suits for damages and criminal penalties.13 French designers have been protected since 1793 under the “doctrine of the unity of art.” The United States excluded fashion designs from protectable subject matter under the Copyright Act of 1909. The United States passed the Visual Artists Rights Act (VARA) in 1990. VARA granted moral rights to artists that created tangible items such as paintings and sculptures. It did not protect writers, filmmakers, musicians, or any other creators of visual works that were mass-produced - meaning more than 200 of an item was created.17 Being ineligible for copyright protection fashion designers were not and still are not protected by VARA. Piracy and Emerging Fashion Designers The Council of Fashion Designers of America describes fashion design piracy as, “the increasingly prevalent practice of enterprises that seek to profit from the invention of others by producing copies or original designs under a different label.” “Pirates” include counterfeiters and copyists, both of whom create low quality replicas of fashion designs therefore reducing the potential profits made from the original. Piracy disproportionately harms emerging designers who are unable to compete with those who steal their intellectual property. Karl Lagerfeld once stated that copying,“can be very damaging for small firms, thought for a house like Chanel, it means a lot less.” Piracy disproportionately harms emerging fashion designers because their brands are less recognized than a brand like Chanel resulting in customers possibly not knowinghat they are not buying an original design. At the current rate in which knock-offs are entering the market very few small businesses can compete with those who steal their intellectual capital. In fact, design piracy can wipeout an emerging brand in a single season. In 2011, several years after the release of their “Go International” collection for Target, Jack

McCullough and Lazaro Hernandez of Proenza Schouler accused the retailer of knocking off their signature PS1 bag. While the retailer insists that it is their policy to respect the intellectual property rights of others several websites have noted the similarities between Proenza Schouler’s PS1 bag and the bag released under Target’s “Mossimo” label. During a 2011 congressional hearing to advance the Innovative Design Protection and Piracy and Piracy Prevention Act (IDPPPA) Proenza Schouler co-designer Lazaro Hernandez made the following statement in regards to design piracy, “Established or undiscovered-we all have been touched by fashion design piracy. We luckily survived despite its disastrous effects, but many colleagues whose names you will never hear, had to close.” According to Susan Scafidi, Professor at Fordham University School of Law,“Emerging designers get very little protection from trademarks. Slapping an emerging designer’s logo doesn’t add a lot of value. For an emerging designer, it is very often the case that the protected logo is left behind while the design is stolen. They have no legal recourse at all. They have no protection.” PROPOSED FRAMEWORK In interviews conducted for this Article the researcher discovered that there is not enough awareness about intellectual property among emerging designers. In fact, the designer does generally not consider it until a situation or problem arises. Since fashion designs are not protected by the current copyright system and emerging designers are largely ineligible for other forms of protections it is up to emerging designers to take the initiative to learn about intellectual property and to vigilantly police their work. While posting items for view online can be a great promotional strategy emerging designers should be mindful of how their actions can subject their designs to copyists. Several cities such as New York City, Washington, DC, Chicago, and Los Angeles have organizations of lawyers and arts administrators who provide legal services and legal information to members of the arts community. Mariessa Terrell is a trademark lawyer based in Washington, DC who represents 139

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emerging designers. In an interview with the researcher Terrell expressed the importance for emerging designers to work on cultivating their brands. “At this point, I mainly just say to them, ‘what you should do is focus your energy on developing your brand name because that’s what you do to distinguish yourself’.” Education combined with effective branding is a good way for emerging designers to protect their businesses under the current copyright system. In addition to the open source system, education, and effective branding this Article suggests that the fashion industry help emerging designers by policing itself. Industry insiders know where trends originate from, so they can help determine who should be credited for a particular original or novel design. In March 2012, influential style blogger Susie Lau of Susie Bubble published a series to tweets on the social media network Twitter accusing retailer Topshop of producing knock-offs of designs by British designer Yasmin Kianfar. Less than two hours later Topshop assured Lau that they would take down the offending garment from their website. This is an example of how with vigilance (and a fair amount of influence) the fashion industry can protect emerging designers by policing itself. CONCLUSION The current copyright regime shows a lack of understanding for the fashion industry. While clothing serves a functional purpose-to cover nakedness, the primary value of a garment lies in its appearance. If copyright law really aims to protect and encourage creative works of art then allowing the protection of fashion designs would not contradict system’s original purpose. Fashion’s moral dilemma is not only a problem of rampant piracy, but of misappropriation. Emerging designers do not have time to wait for legislation to pass that will realistically affect a small amount of their designs. This Article asserts that debating fashion legislation will not solve the problem at hand. The fact of the matter is that fashion design is an art form. As with any other artist fashion designers need to be credited for their work. A sui generis system of fashion design protection that acknowledges the moral 140

rights of fashion designers as well as educates them about intellectual property will protect emerging designers better than the sui generis legislation on the docket. Akanegbu, Anuli, Fashion’s Moral Dilemma: Exploring How a Lack of Moral Rights in the United States Disproportionately Harms Emerging Fashion Designers (May 8, 2012). Available at SSRN: https://ssrn.com/abstract=2054783 or http://dx.doi. org/10.2139/ssrn.2054783

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The Primary difference between inspiration and imitation is simple; Intent.

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