-- ChristinaYoun - 01 Apr 2008

Fashion: the New IP Battleground?

Introduction

The Council of Fashion Designers of America (CFDA) has been pushing Congress to pass H.R. 5055, which will include fashion design to be protected under copyright. Designers such as Nicole Miller complain that their “original designs” should be protected because copying makes the trends “end too fast,” makes clothes “lose value,” and “ruins the whole thing.” But would it be wise to extend IP laws to protect fashion design?

Why does it matter?

Copying (designs inspired by the ones produced by The Fashion Houses, not counterfeit items) allegedly accounts for more than 5% of the $181 billion American apparel industry. If designs were copyrighted, consumers would ultimately pay in the form of higher prices for the legal fees associated with checking for copyrighted material and obtaining rights to use “original designs” in low-end fashion. Copyrighting designs may also put “copy giants” such as Forever 21 out of business, closing out the only option for many consumers who otherwise would not be able to afford styles that are in fashion. Those who cannot afford the high-end prices may be forced to be “unfashionable” (whose social ramifications call for an entirely different paper). Furthermore, copyrighting could stymie the careers of young or new designers who cannot afford the legal fees to copyright-check their designs or do not have enough experience to work for a House. Finally, copyrighting may stunt creativity. If certain sleeves or hemlines were exclusive to particular Houses, then other designers would be precluded from using those design techniques and elements in realizing their own works.

What is being sold here?

Fashion, as an institution, is based on copying elements from other designs and disseminating the trends. A trend is a trend because everyone is doing it. Throughout the years, hemlines have risen and fallen. Waistlines have sat high on the hips and super low. To be sure, a fashion trend is not House-specific. Dolce&Gabbana doesn’t own the skinny jean nor does Chloe own the trapeze top. Every season, we see very similar design elements from the Houses, which get reinterpreted and distributed to your local Forever 21.

Then, what is so different about low-end fashion manufacturers copying “original designs” when the “original designs” themselves are copies of other designs? The most obvious answer would be the pricetag. Other differences include quality of materials and craftsmanship. But most importantly, the “original designs” all have insignias, unique to the House that claims to have created the design, proudly emblazoned on the sleeve, seam of the bodice, and/or inside the article. Ultimately, the Houses are putting their symbols, their good names on the market.

Trademark Laws

Currently, there exist trademark laws that protect brand names and logos. Original patterns and prints are also protected by law. Thus, the truly “original” aspects of the Houses’ production are protected already. For example, designer Tory Burch sued a number of chain stores for carrying ballerina flats with insignias too similar to hers. Likewise, designer Anna Sui sued Forever 21 for infringing on her unique prints on 26 occasions. There are more than twenty other designers who have filed similar lawsuits against Forever 21. To be sure, intentional attempts to produce counterfeit original luxury goods are prohibited by law.

So what is "ruined"?

What exactly was Miller talking about when she said that copying “ruins the whole thing”? Maybe she meant lower classes were not meant to look so much like her patrons who spent the money. What about all those people who get the $3,000 top instead of the $26 look-alike? Surely, they don’t want to look like the lower classes.

But manufacturers, retailers and even some intellectual property scholars insist that this copying is exactly what generates the fashion industry. Copying promotes industry by inducing current trends to become obsolete and creating demand for new ones. Those who buy the $11,000 outfits (many celebrities) will gladly do so again to keep “ahead of the fashion.” Ordinary people will see their favorite celebrities wearing the ahead-of-their-time pieces, wait (not for long) for similar designs to hit Forever 21, and perpetuate a trend. Once the trend gets played out enough, the former group will again seek out the new $11,000 “original design.” Sure, some “original designs” get leaked prematurely over the web and copies hit stores before the “originals” do, but chances are, unless the “original” is not following an already popular trend, most people wouldn’t buy the copy until they see it on TV or in magazines anyway.

Let the Market Speak

If anything is to be ruined, copyright laws would ruin the market forces currently at play. Judging by the size of the industry, there are clearly a good number of brand name sales. That is, there are people who are willing to pay the cost of bearing those unique insignias. When about 95% of sales in the American apparel industry are attributable to brand name sales even with all the much more affordable options, there is something to be said about the strength of the names. However, if copyright laws were to wipe out the copy giants and their affordable options, would the Forever 21 patrons be able and willing to turn to the Houses instead? Probably not. Instead of changing the 5% of copies sales into brand name sales, the industry will probably just lose most of the 5%. The industry will probably lose more sales when trends do not change as often and the name-seekers do not feel the need to change styles so rapidly. The copy market exists for a reason: it simultaneously generates supply for the poor and demand for the rich.

Conclusion

The CFDA’s copyright endeavors seem to be shortsighted. It is trying to stretch IP laws in a direction that has traditionally shunned it and has thrived because of its absence. If its motive is truly to protect the “originality” of the Houses, then it should make more effective use of the trademark laws already in place or push for more stringent penalties for counterfeiting or infringing on their logos and prints.

• "Copyright" here means only a struggle for control. Of course the fashion houses aren't going to kill geese that lay golden eggs: they're going to tax them. You and I may both believe that only a weak form of property right will avoid reducing the overall profitability of the garment "sector" of the economy. But copyright allows the holder to capture the benefit of whatever increase in price the "infringer's" customers would pay without reducing total revenue, even if that reduces the copyists's profitability, so long as it doesn't put them out of business. Working women, unlike high fashion's customers, care what they pay for clothes. So the Houses are trying to "monetize" their designs by forcing up the copyists' prices a little bit and keeping the rise for themselves in license fees. Lots of possible fee structures would "allow young designers to succeed," etc. These guys aren't entirely stupid, and they aren't trying to ruin the industry: they just want to make some more bucks at someone else's expense. I am as much of a copyright minimalist as the next guy, or in fact more, but I can't see why I should care about the outcome of a fight over money between the thugs who run the copyists' and the thugs who run the Houses. If you want to present this as an issue to be concerned about, you need to offer something more ponderable than the prediction of a parade of horribles none of which makes economic sense, and therefore is most unlikely to occur.

Eben’s problem with the fashion industry is two-fold: (1) women are “coerced” into accepting, even enjoying crappy clothes because they have no good quality alternatives; and (2) women’s clothing is made cheaply via sweat shops and other unethical practices. He suggested that we compel the fashion industry as a whole to produce better quality clothing for women, as it does with clothing for men and that we force the fashion industry to pay fair wages to its factory workers. While I fully support such endeavors, I feel that it is outside the scope of the copyright issue. Furthermore, although banning such a copyright would not fix the graver social problems of “thug pushing thug,” relatively poor quality of women’s clothing, or sweat shop businesses, I think that refusing to address the issue simply because it won’t fix the greatest problems is problematic.

If this is really a case of “thug pushing thug,” fashion copyrighting will do nothing for the betterment of society while inevitably hurting consumers. Society would not benefit because the licensing fees that the Houses collect from the copyists (who will pass the costs onto consumers) will not go to providing better quality clothing or providing fair wages and working conditions. Instead, copyrighting will limit consumers’ choices because they will have to pay more for the same crappy sweatshop-made clothes. Moreover, copyrighting will provide Houses with even more money to lobby for their current practices.

Surely, quality and labor issues need to be addressed. Perhaps legislation that impose a grading system and a high standard for merchandisable clothing will bring the quality of women’s clothes up to par with men’s clothing and legislation that does not allow sweatshop-made clothes to be imported/sold in the U.S. will ameliorate the labor issues. But these are outside the scope of the copyright problem at hand. Nonetheless, ignoring the copyright problem for this reason will ultimately harm more “innocent” people (as opposed to the “thugs”) and may indirectly empower Houses to continue their current practices.

-- ChristinaYoun - 20 May 2008

NOTE: I'm still in the process of revising.

-- ChristinaYoun - 20 May 2008