-- ChristinaYoun - 01 Apr 2008

Fashion: the New Legal Battleground?

Introduction

The Council of Fashion Designers of America 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.”

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 “haves” versus “have-nots” social ramifications call for an entirely different paper).

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 price tag. 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 posing as a size indicator. Ultimately, the Houses are putting their symbols, their good names on the market.

Trademark and Anti-piracy 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"?

The Bottega Veneta Example

Let the Market Speak

Hi Christina, Not sure where you plan to go with the paper but I thought you might want to consult this short article I read this summer. It was either in the New Yorker or The Economist. Don't remember... Anyways, the article argues that copies are actually good for the fashion industry because mass reproduction of trends "forces" fashionable women to buy new Fall, Spring, and Resort lines. They argue that fashionable women don't want to wear, say leggings or florals, once everyone begins to wear them. Stores like Forever 21 are good for higher name brands.

Also there was this article last week in the New York Times (i admit i did not finish reading it) last week about how luxury brands are backing away from branding and moving towards more quiet and classic luxury. Something something recession fashion. The move away from logos is not exactly big news but it's still interesting. Muted luxury is an interesting form of conspicious consumption. Only those versed in the codes can read the outfit.

Just some thoughts. Hope this helps even though I don't really know your topic.

Thanks Thalia, I think I may have read those same articles in the New York Times. The first article you mentioned is actually what inspired this forthcoming paper, so you're right on. The webpage crashed when I was trying to edit so I didn't exactly do a good job of laying out my paper. I'll try to edit again later today so you'll actually have some substantive material to comment on. Thanks for your interest and please leave more comments!