Stitches and Sketches May Make Them Bones, but Do Knock-Offs Really Hurt Them?

Fashion Designers Lobby for Alteration of Copyright Law

 

Writers jot their thoughts down on paper, musicians record their compositions onto digital tracks, directors capture their visions on film, and any subsequent attempts to duplicate their creations are prohibited by law. But when creators of fashion designs—artists like Marc Jacobs, Vera Wang and Calvin Klein—translate their original sketches into wearable garments, although the creative process may be the same as that for their non-fashionista contemporaries, the retained ownership rights are not. 

 

After multiple other failed attempts in previous years, the fashion industry is once again vying for a piece of the copyright pie through their lobbying group, the Council of Fashion Designers of America. Sen.Charles E. Schumer, D-N.Y., introduced a bill into the Senate earlier this month, following a similar House bill, the Design Piracy Prohibition Act (H.R. 2033), which has been under consideration since April.

 

As it stands now, copyright law doesn’t apply to articles with “useful” purposes, such as clothing or refrigerators. Exceptions to the usefulness guideline are made only for the hull design of water-borne vessels and for “certain aesthetic or creative aspects” of useful designs that are independent of the design’s function.

 

The design piracy bill proposes to amend Chapter 13 of the U.S. Copyright Act to protect fashion designs for three years after they’ve been made public, as long as designers register their design within an initial three-month window.

 

Compared to the protection period of other creative mediums (which is typically either 70 years after the death of the author, 95 years after publication or 120 years after creation), three years is a significantly shorter period of time. However, maximum penalties for violations would be significantly harsher at $250,000 instead of $150,000. Supporters of the bill say three years is sufficient to protect designs just after release, when they’re at their most vulnerable to market copycats.

 

 

Fighting for Fairness in Fashion

 

The designers lobbying for copyright protection, like Nicole Miller, Narciso Rodriguez and Marc Bouwer, say their brands have been cheapened by knock-offs for years. They put much of the blame on the instantly available online coverage of runway shows, which they say has caused a proliferation of design copying in recent years.

 

Mass-market clothing stores like Forever 21 and Urban Outfitters have been known to steal designer looks off the runways before the original garments make it into production, writes Eric Wilson in The New York Times (“Senate Joins Knockoff Battle,” Aug. 9, 2007).   

 

In an L.A. Times opinion piece, design legend Diane Von Furstenberg argues on behalf of those hit hardest by the knockoff industry, budding fashion designers, who often become victims while still struggling to make a name for themselves and start their own recognizable lines.

 

For many of these young designers, their fight has less to do with a loss of profits than with earning the respect of their industry and fellow artists and developing the cachet to establish a successful design house.

 

After spending countless hours designing, sewing and fine-tuning their creations, burgeoning designers can find their innovations thwarted as their garments become recognized as just another piece in a mass-market store instead of an original design.

 

“In legal terms, fashion designers are the poor relations of the creative world,” Von Furstenberg writes (“Von Furstenberg: Fashion Deserves Copyright Protection,” Aug. 24, 2007).

 

She, as well as other proponents, note that the United States is the only country with a strong fashion industry that does not offer legal protection for its designers, unlike European countries, which offer up to 25 years of copyright.

 

Designers in favor of the design piracy bill see themselves as simply asking for the same protective consideration of their creativity as other artists.

 

As Rep. Jerrold L. Nadler, D-N.Y., puts it in Wilson’s article, “Kate Winslet’s movies are protected from pirates. Kate Spade’s handbags are not.”

 

 

Trends Come and Trends Go, but Originality is Forever. Or Maybe Not.

 

Since fashion, by nature, is cyclical and evolves out of the recycling and updating of styles, opponents of fashion copyright believe claiming a vintage-inspired design as one’s own is not the definition of originality, nor should it receive protection under the law. That law would also raise problematic questions about where inspiration ends and imitation begins.

 

 “A prohibition on copying dresses, coats and the like would seem to open an impossibly murky debate over how to separate a duplicate garment from one simply inspired by someone else’s work and part of a fashion trend,” ventures a recent posting on ShoppingBlog.com.

 

Some opponents argue that unlike in film or music, where copy violations can usually be determined fairly easily, the effort required to demarcate the minor differences between a signature Gucci buckle and a “Gatcha” buckle in order to deem the latter a pirated design would create tedious and unnecessary work for the courts.

 

Outside the courts, even the average American likely has more important things to worry about than keeping tabs on the new purse shape dominating Chanel’s fall handbag collection and whether their Target version may be an illegally too-similar rendering.

 

Surprisingly, opponents of the design piracy bill are also using creative autonomy in their argument against the legislation, saying that the copyright amendment would actually inhibit freedom in design. They maintain that fashion is driven by the copying and replication of styles, and if a bill were to limit their ability to imitate, the natural “in” and “out” rhythm of the industry would falter along with its designers.

 

“Sales of high fashion aren’t driven by the public’s need to be clothed but by the status an exclusive garment or handbag conveys,” declares the LA. Times in an op-ed piece. “The more common a look becomes, the more the fashion-conscious seek out the next thing. It’s a cycle: Innovations become trends, which beget more innovation. And without copying, there’d be no trends.” 

 

By the time a particular haute couture design does become a mainstream fashion trend, the chances of the average Mervyn’s shopper knowing—or even, for that matter, caring—that the cute bubble skirt they just took to the cash register was originally a Balenciaga are slim to none. So if not their brand, what, in the end, are designers actually protecting?

 

 

Yet even after all this debate, including our own blog post, on whether to copyright or not to copyright fashion designs, we here at NextStudent question how worthy this argument is of discussion, at least at the legislative level?

 

As Congress deliberates passing a College Cost Reduction Act that cuts $19 billion in government funding to education loans, balancing the government’s right to wiretap against privacy rights, and setting a withdrawal date from Iraq, we wonder if our lawmakers don’t already have enough on their current plates without having to weigh the differences in cut, pattern and shape of a Donna Karan original against a $19.99 fake, now available at a giant retailer near you.   

 

 

Talk to the education finance advisors at NextStudent. They have all the information and advice you need on student loans. Check out www.nextstudent.com.

 

 

Student Loan Girl