Fashion is everywhere you look. In the US, the fashion industry’s annual sales are higher than those of books, movies and music combined. Everyone wears clothes, whether for necessity, the desire to follow current trends, or for any reason in between. Fashion can be an indication of an individual’s social status, and also reflects cultural and social ideals. Recently, there has been some question as to whether fashion design should be protected by IP rights. Providing one perspective on this issue are Professors C. Scott Hemphill and Jeannie Suk. My fellow IPilogue editor, Michael Decicco will be canvassing other perspectives in his post tomorrow.
As previously discussed, the US Congress is debating whether fashion designs are in need of copyright protection. Currently, there is no intellectual property protection for fashion designs in the US because garments are considered “useful articles”. Intellectual property protection would require a very delicate balance. On one hand, the protection would have to be adequate to provide an incentive for new works; but that must balanced with the need to ensure that materials and designs are still available for subsequent designers.
There are several very compelling arguments for granting IP protection. One argument is that the unregulated mass copying of fashion designs threatens innovation. The prevalence of “close copying“, or knockoffs, of fashion designs has increased due to the large scale and low cost at which copies can quickly be made (over 50 comparisons of original designs and knockoff’s can be seen at fashionista.com‘s “Adventures in Copyright”). For example, “fast fashion” copyist Forever 21 can make thousands of copies of a design in six weeks or less, and knockoffs of Oscar dresses can be on store shelves in as little as two weeks. Similarly, stores like Zara and H&M avoid directly copying a design, but are still able to produce their own interpretation in four weeks. Mass copying is problematic because it undermines the market for the original design; consumers may not want to pay for the original when it is easy to get an identical copy for much less money. However, copying is not equally harmful to all producers of fashion design, and it is argued that midrange designers are actually harmed more by mass copying, particularly in terms of lost profits. For example, Forever 21 had made a copy of a fairly simple dress originally designed by F&C. The original dress sold for a few hundred dollars, and when compared to the thousands of dollars that famous designers sell their clothing for, this particular dress was more easily within the spending range of Forever 21’s customers. The original dress was relatively affordable; however, not all consumers are willing to pay for the original when they can get a fairly convincing, and cheap, knockoff. F&C’s profits are reduced because people who likely would have bought the dress directly from F&C decided instead to get it from Forever 21. Furthermore, in this type of situation, customers may be more likely to be confused into thinking that Forever 21 is selling the original dress, but at a lower cost than buying directly from the designer.
It is also argued that providing copyright protection would help to level the playing field between designers. Small and independent designers do not have the same access to trademark protection as the high-end designers, like Prada, Gucci and Chanel, do, and these luxury designers already have legal protection under trademark law. Trademark law allows for the protection of logos and certain designs, such as Gucci‘s interlocked “G’s”. By registering a trademark, Gucci is able to stop others from creating designs that replicate their logo, and more importantly, by featuring their logo prominently in their designs, Gucci is able to deter copyists as having to omit the logo would make the copied garment significantly different from the original and therefore, less appealing to consumers. Furthermore, luxury dresses are usually not in the same market as the copyists’ version, as people who tend to buy knockoffs from stores like Forever 21 are not able to afford to buy the original designs, thus making it so that Forever 21 is not directly taking profits away from the high-end designer. Lastly, luxury designers often use material, adornments and techniques that are costly and uncommon, thus making it harder for copyists to create cheap, low-cost knockoffs. It is argued that these imbalances result in luxury designers being able to continue to innovate, whereas independent designers who do not have protection against copyists see a disproportionate negative effect on their profits.
It is clear that copyright protection for fashion design should at least be considered. While it is true that fashion design has existed for many years without copyright protection, the speed and volume at which copies can be created may indicate a need to re-visit copyright law in order to grant protection for fashion designs.