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Can fashion be copywrited?


#1

Applies to jewelry too. Today’s NYTimes.:

Can Fashion Be Copyrighted?
Designers Want to Halt Knockoffs
But Some Say They Spur Sales;
‘Few People Can Spend $4,000’

By BEN WINOGRAD and CHERYL LU-LIEN TAN
September 11, 2006;

As fashion models hit New York runways this week, they won’t just be
showing off spring 2007 designs aimed at high-end retailers. They’ll
also be providing a wealth of ideas for apparel manufacturers that
copy runway looks – usually with less-expensive fabrics, in foreign
assembly plants – for purchase by the masses.

Hoping to change that by following Europe’s lead, prominent fashion
designers in the U.S. are pushing for federal legislation that would
offer three years of copyright-like protection for designs ranging
from dresses and shoes to belts and eyeglass frames. Though the odds
of passage in the current Congress appear slim, the bill has ignited
a fierce debate over how the creative process works in the women’s
fashion industry, which rang up retail sales of $101 billion in
2005.

The central question is whether fashion design is an art worthy of
protection or a craft whose practitioners can and should freely copy
one another. In an industry where many designers come out with
similar looks each season – and where inspiration is said to be “in
the air” – designers and the thriving knockoff industry are hotly
debating the issue.

Another key question: whether knockoffs, somewhat
counterintuitively,

actually benefit the industry as a whole. Copying, some argue,
propels the fashion cycle forward by creating popular trends that
spur designers to move on to the next big idea. In what they dub the
"piracy paradox," law professors Kal Raustiala of the University of
California, Los Angeles, and Christopher Sprigman of the University
of Virginia argue that copying makes trends saturate the market
quickly, driving the fashion cognoscenti to search out newer looks.
“If copying were illegal, the fashion cycle would occur very slowly,
if at all,” they write in an article to be published in the Virginia
Law Review. While they concede copying can harm individual
designers,

they say Congress should protect industries only when piracy stymies
– rather than encourages – innovation.

Joel Paris, who offers some 2,000 handbag styles resembling designer
models on his Anyknockoff.com Web site and clearly benefits from
others’ design inspirations, maintains that knockoffs can boost a
design house’s profile. “Let’s say Versace does a pair of parachute
pants. Then three months later, some other designers do versions of
parachute pants, and a year later you go to Costco or Target and you
see parachute pants there,” he says. “Everybody’s going to know that
it was Versace that kicked off the trend. It’s great for the high-end
fashion designer.”

Taking a different tack, Allen Schwartz, founder and design director
of the label A.B.S. by Allen Schwartz, says he makes affordable
knockoffs of red-carpet and runway looks to serve average consumers
who can’t afford high-fashion designs. For example, Mr. Schwartz is
selling a $396 white strapless chiffon gown inspired by a $6,700
Alberta Ferretti gown worn by Debra Messing at the Emmy Awards. He’s
also introducing a $385 purple satin and chiffon version of a silk
dress Evangeline Lilly wore to the Emmys. The original was designed
by Versace, which says its price is available upon request.

"My job is to bring trends to the consumer at a fair market price,"
says Mr. Schwartz. “Few people can spend $4,000 on a dress.”

But fashion designers – who invest time and money drawing sketches,
ordering samples and making adjustments – say such arguments ring
hollow. Designer Catherine Malandrino, who says she has seen almost
identical versions of her blouses and sweaters in such stores as H&M
and Esprit, maintains that copying isn’t the only way to bring
fashion to the masses. “If you’re creative, you can design original
designs that are affordable,” she says. “You don’t have to knock off
what other people are creating.”

Designer Tracy Reese, whose dresses sell for several hundred dollars,
says she recently saw a dress from her Spring 2003 collection knocked
off by Eci New York, a sportswear brand that sells in such stores as
Macy’s and Nordstrom. The $164 dress by Eci featured both a similar
pattern and silhouette, Ms. Reese says. “My first thought was, ‘Can I
sue them for this?’”

At the moment, probably not. Currently, federal trademark law
protects against infringement of registered logos, brand names and
distinctive patterns, like Burberry plaid. Counterfeiting, in which
bags, sunglasses and other fashion items are fraudulently stamped
with the designer’s name, is outlawed.

But when it comes to the basic cut of a dress or shape of a purse,
manufacturers are generally free to copy – or “reference,” as many
put it – any style they want. Fashion design has historically
fallen outside the scope of copyright protection because it was
considered a craft, not an art, dating back to a time when clothing
served to simply cover the body, says Susan Scafidi, a law professor
at Southern Methodist University who runs a blog on counterfeit
fashion.

Today, “fabric is a means of expression, just like pen or ink,” she
says. Under the proposal, designers for the first time could register
clothing designs with the U.S. Copyright Office. Registrations would
cover the overall appearance of the item in question, barring even
those made with inferior fabrics. But designers couldn’t protect
commonplace designs already in the public domain, like jeans, T-
shirts, wrap dresses or trench coats, or anything before the law was
passed, such as styles from previous seasons.

If the designer believes another person infringed his copyright, he
could sue those who sell or manufacture the design in federal court.
Those found guilty would face fines of 250,000 or $5 a copy,
whichever is greater.

In other fields, copyright law bars duplicates found to be
"substantially similar" to originals. But critics say applying that
standard to fashion design would be difficult, and some fear the
bill

would stifle innovation because designers would constantly worry
about being sued. "I don’t know how they’re going to police this,"
says Mr. Schwartz of ABS, whose knockoff gowns could be a prime
target if the law passes. “This could really damage the creative part
of the business if they start putting restrictions on people.”

“It’s going to be crazy – there are going to be a lot of lawsuits
flying around that have no merit,” says Steven Feinstein, president
of Eci. He says his company designed the kimono-like dress that
upset Tracy Reese after hearing that Japanese-style pieces would be
popular this past spring.

The proposed U.S. law would be more modest than the protections
offered in Europe. In one famous dispute, Yves Saint Laurent
successfully sued Polo Ralph Lauren under a French law in 1994 for
copying his $15,000 tuxedo dress. The European Union now grants
three years’ protection to original fashion designs and allows
creators to apply for 25-year extensions. Even so, knockoffs are a
thriving business in Europe where purveyors of fast fashion as H&M,
Zara and Top Shop freely adapt recent designs from the runway to make
inexpensive versions.

In addition to established names, the U.S. bill’s supporters say that
copying hurts young designers in particular. One example is Jennifer
Baum Lagdameo, who runs the handbag label Ananas from the basement of
her home outside Washington. For fall 2004, she designed a leather
handbag with coconut-shell rings – dubbed the “Furoshiki” –
inspired by the shape of a traditional cloth used to wrap gifts in
Japan, where she once lived. The bag was once her best-selling model,
but she says numerous retailers canceled orders after several
clothing labels produced similar designs that sold for between 10%
and 50% of her $285 price.

As it is, even designers can have difficulty discerning their
originals from the copies. Evening-wear designer Carmen Marc Valvo
recalls recently meeting a fan who was wearing a chocolate-brown,
halter-necked cocktail dress he initially thought was his. “She came
up to me and said, ‘Oh my god, I love your designs,’” he says. “When
I took a closer look, I said, ‘Wait a minute, there’s something
different about this dress – it has a different back!’”

Still, Mr. Valvo says he’s been copied so much he now shrugs it off
when he sees styles that imitate his work. He finds the idea of
legislation “insane,” he says. “Fashion is more evolutionary than
revolutionary – you’re always inspired by something else. Besides,
I don’t think anyone copying me would be able to do it the same
way.”


#2

GREAT article!!! Was very thoughtful of you to share it here and I’m
sure I’m only one of many Orchidians appreciative of the chance to
read this NYT piece. Will be interesting to see if anything develops
on the legislative front at some point down the road.

All the Best,
Jeanette Kekahbah


#3

Lisa:

You raise an interesting point with this article. I have seen many
interviews and read articles on the issue of copying designs in
fashion. Allen Schwartz probably does the most famous copying in the
business yet he hasn’t been sued (that I know of). The bottom line
is that it’s going to happen. Unfortunately, I think the possibility
of winning lawsuits against copying is slim. There are just too many
variables in the system.

With that said, the upside is that there is a number of people who
seek out and buy originals. While I like style knock-offs, I enjoy
the feeling of owning originals when/if I can afford them. I say we
all keep doing what we do best and make the most creative work we
can. I think the quote by Mr. Valvo probably says it all.

Tammy Kirks
Red Bee Designs
www.prettyprettybangbang.com