Saturday, October 09, 2010

Fashion Saturday -- Should Fashion Be Copyrightable

Back in March, the New York Times' Freakonomics blog devoted several posts to the question of copyright in the world of fashion.

copying is entirely legal in the United States.  American law does not protect most fashion designs. Copyright law views fashion designs not primarily as artistic works, but rather as “useful articles,” and useful things are not granted copyright protection. This rule reflects the fact that useful things are supposed to be the domain of patent law.  But clothing designs virtually never qualify for patent protection, because they are almost never “novel” – i.e., truly new – in the way patent law requires.

And while fashion brands are fully protected by trademark law, most imitators know enough not to copy the labels. (Those who copy labels are counterfeiters, and can be prosecuted for it).  Since the actual design of a dress is unprotected by patent, trademark, and copyright, Faviana is free to sell its knockoffs.

That Faviana and companies like it can so readily knock off another firm’s design may seem unfair, and designers do complain about the copies that Faviana and many other firms produce.  But just as often, designers – even elite designers – engage in copying themselves.  And that’s a good thing.  Copying, it turns out, provides some very important benefits for designers, consumers, and the entire fashion industry.

there is no shortage of innovation in the U.S. fashion industry.  Right now, in studios in New York and Los Angeles, uncounted thousands of designers are busy churning out new designs.  And they are also busy copying and “interpreting” one another.  And that’s good.

it is through copying that the fashion industry creates trends.  And it is trends that sell fashion. For this reason, fashion designers’ freedom to copy does not harm the fashion industry, and indeed may be one key to the industry’s continued success.   In previous work we’ve called this “the piracy paradox.” Rather than harming originators, as piracy is supposed to do, in the fashion context it often helps them.

The DPPA [Design Piracy Protection Act] is unnecessary because for 70 years the American fashion industry has thrived in a world of free and easy copying. To be sure, some designers are unhappy with the status quo and support the DPPA. Proponents point to the speed with which red carpet copycats like Faviana replicate dresses, as well as the great success of repeat copyists like Forever 21, to argue that protection is essential. But while individual cases of harm certainly exist, intellectual property law is meant to be designed with the big picture in mind. Without clear evidence of systematic harm, the case for the DPPA is very weak.

The DPPA is also unwise. Extend copyright to the fashion industry, and designers are going to start fighting over who started a trend.  Ligitation of this sort is great for lawyers—and those firms who can afford good lawyers—but not great for small designers or start-ups, who can be easily cowed or crushed by a lawsuit. And in a field where many believe there is nothing new under the sun, creating monopolies in fashion designs is bound to lead to a lot of lawsuits.

There’s one last point to make here.  Consumers benefit enormously from the fashion industry’s freedom to copy.  Because of copying, the latest styles are not restricted to the wealthy – indeed, copying has played a major role in democratizing fashion.

This weekend, On The Media devoted two segments to the issue of copyrights and alternatives thereto:

A Copyright Law for Fashionistas

October 08, 2010

The fashion industry in the United States operates without copyright protection. Which means that although designers own trademarks on their logos, there’s no law that prohibits copying the cut of a garment. Fashion law expert Susan Scafidi talks about a new bill, the Innovative Design Protection and Piracy Prevention Act, that could change that.

Take my Joke, Please

October 08, 2010

The writers of Saturday Night Live were accused of joke plagiarism last month by sketch comedy writer Tim Heidecker. Whether or not Heidecker’s right, he can’t sue: like fashion, comedy is a world where copyright law barely applies. Comedians don't copyright their jokes; instead, they rely on an informal system of intellectual property enforcement. Chris Sprigman and Dotan Oliar, two law professors, decided to study how that system works.

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