The copying of fashion design originals – “knocking off” or “affordable interpretation,” depending on your point of view – is a practice that designers may have grudgingly accepted in the past, when less expensive copies took some time to reach stores and only those consumers who could afford the designer-label originals could be the first to follow a trend. This practice is costing designers greatly as more advanced technology makes it possible to see high-quality copies appear in stores before the original has even hit the market. While it has long been the practice of the American fashion industry to knock off European designs, American designers did not copy one another. They registered their original sketches with a trade group called the Fashion Originators Guild, an organization that urged retailers to prohibit styles known to be knockoffs.
In 1941, the Supreme Court held that the Guild was an unreasonable restraint-of-trade; the end of the Guild marked the beginning of the knocking off “free-for-all” that we are familiar with today began. It is now common for imitators to photograph the clothes in a designer’s runway show, send the photo to a factory to be copied, and have a sample ready within a couple of days for retail buyers to order. Since fashion collections are displayed in runway shows approximately four to five months before they are available to the public, this leaves the fashion impersonator plenty of time to get the copies to stores at the same time, if not earlier, than the originals. Designers assert that design piracy cuts into their longstanding franchise of uniqueness, lowers their sales volume, and ultimately removes incentives for creativity.
Sometimes the same department stores that carry the higher-priced version of a garment will also sell the lower-priced knockoff, often under the store’s private label. Knocking-off is widespread in the fashion industry and even those designers who fume over being copied are not above doing it themselves. Because of the speed with which designs can be recreated, it is not even always clear which designer created the original and which designer simply copied it. This discussion will explore how protection of fashion works fits or does not fit into the current intellectual property law framework in the United States. The overall organization of this discussion is a systematic consideration of possible protection for works of fashion under copyright, patent, and trade dress law. This discussion will encompass not only the current state of the law, but also proposals for reform, such as an amendment to the Copyright Act to protect fashion works.
The central question is whether fashion design is an art worthy of protection or a craft whose practitioners can 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 fiercely debating the issue.
Another key question: whether knockoffs actually benefit the industry as a whole. Copying, some argue, propels the fashion cycle forward by creating popular trends that encourage designers to move on to the next big idea. In what they call 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 drench 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,” While they admit copying can harm individual designers, they say Congress should protect industries only when piracy stymies — rather than encourages — innovation.
Despite the apparent unsuitability of copyright protection to works of fashion, commentators are often confused by the anomalies in copyright law under which fashion accessories, works of architecture, and computer chip designs are eligible for copyright protection. Some argue that since copyright has already been extended to protect the aforementioned items, copyright may be the best legal tool that fashion designers have when fighting design piracy.
For example, Robert Denicola has argued that it would be more consistent with the legal principles of intellectual property law to draw the line of copyright with respect to arguably “useful articles” by shaping whether, in the process of creating the item, the designer focused primarily on aesthetic or utilitarian consideration. Such a test would to a great extent improve the odds that works of fashion would be granted copyright protection, as most fashion designers are concerned with the aesthetic rather than the functional aspects of their clothing.
The specific extension of copyright to fashion works would have many advantages for designers. First, a copyright owner may seek an injunctive remedy to prevent the impersonator of his or her design from making and selling copies of the original. Second, copyright law allows for the imposing and discarding of the infringing items. Third, the copyright owner can recover damages, either actual or statutory, and also profits. Finally, the copyright owner may be able to recover court costs and attorney’s fees. This last remedy is especially important in fashion design cases, as it allows small new designers to take on big manufacturers whose greater power and financial resources would otherwise be an intractable obstacle.
Despite these advantages to fashion designers, an amendment to the Copyright Act for works of fashion is not likely to be passed soon. As one commentator concisely stated that the current situation of the legislators and courts has a great deal of trouble seeing past the utilitarian function of a piece of clothing. While industrial designs have been the subject of repeated bills, Congress has explicitly excluded fashion works from these bills. For example, while the Design Anti-Piracy Act of 1989 would have protected original designs of useful articles against unauthorized copying, the bill would have barred apparel designs composed of three-dimensional shapes and surfaces with respect to apparel. According to one commentator, this exclusion has no basis in any discernible principle. It was added to help still the vociferous opposition of retailers to the bill.” In this current climate of judicial and legislative hostility, copyright protection will probably not be extended to specifically protect fashion works.
Fashion seems to be an industry particularly ill-suited to legal restrictions against copying. Copying or “borrowing” or “reinterpreting” is prevalent at every level of the fashion industry. When a lower-priced designer knocks off a higher-priced designer’s clothing, the copy may be a huge success because it offers more value for the price. But it is the higher-priced designers who are copying each other.
Fashion designers labors over their finished product just like any other creator or inventor. It takes hours upon hours of careful effort until a dress with just the right cut or a purse with the perfect design is complete. Why should this hard work and effort not grant the person behind the creation some level of security, allowing them to collect the benefits of their labor?
As a matter of Public policy it is generally believed that copycats are good for the economy. The claim asserts that preventing copyright for fashion eliminates the possibility of a monopoly by providing the consumer with lower priced knockoffs. Furthermore it is contended that knockoffs really promote business for the designer by creating a market for a style of fashion. But do we believe this actually? And what’s wrong with having a monopoly on fashion? When a consumer spends thousands of dollars on a purse or a dress that others will recognise as a Louis Vuitton or Versace, they should be able to enjoy the exclusivity that comes with such a purchase. Knockoffs steal from the consumer of their exclusive right to enjoy a specific product.
There are policy based arguments behind the government’s resistance to providing a copyright for fashion; ranging from the dislike for creation of monopolies to improving the market.
If the designer believes another person infringed his copyright, he could sue those who sell or manufacture the design in any federal court. Those found guilty would face fines of 250,000 or a copy, whichever is greater.
September 5th, 2010 
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