Bad news for street vendors and discount retailers alike: fashion designers are currently pushing for copyright protection for their designs. They’re claiming that knock-offs of haute couture fashions (i.e., those “Coach” purses sold by the guy on the corner) are harming their sales, and Sen. Charles Schumer and a gaggle of designers are backing the Design Piracy Prohibition Act, which was introduced in the Senate on Aug. 2.
What the world needs now is certainly not more classes of copyright protection. Without knowing anything of the legal history of the push for copyright for fashion (of which a quick Google search reveals there certainly is) or any sort of legal knowledge of this issue to back up my analysis, I can still come up with a handful of common-sense reasons why this really shouldn’t fly.
People buy designer clothes for two reasons: the quality (a lot of the really high fashion pieces are all hand-sewn, etc.) and the label. Even if that Hermes knock-off looks exactly like an Hermes original at first glance, it’s not going to be as well-made, and it’s not going to have the authentic label (attaching a designer label to a fake is currently prohibited under trademark law). So for people who are really in the market for designer goods, the knock-off isn’t going to cut it. For some it will be a matter of quality. For some it will be a matter of snobbishness. But the kind of folk who are willing to pay $3,000 for a Kate Spade handbag aren’t going to settle for what my friend calls a “Kate Spode.” Since look really isn’t what adds the value here, copy-cats without the label or the quality can hardly detract from the value of the real thing.
The claim that people buying these knock-offs is hurting business because these customers would otherwise buy the real thing is also dubious. This argument is similar to those horribly inflated statistics media companies like to trot out about all the hundreds of DVDs an individual would buy each year if only the films weren’t freely available for download. People buy designer knock-offs because they’re cheap, and most people can’t afford real designer fashions. If the knock-offs weren’t available, this doesn’t mean people would suddenly have more money to spend on the real thing – they’d just buy other brands of clothing instead.
The other question is, where would this fashion copyrighting stop? Designers are claiming it would only apply to a whole item that is visually identical to a designer item, but it seems it wouldn’t be too long before designers were copyrighting elements of particular designs, cuts or buttons or patterns, etc., or going after designs that were merely similar to their own. Because so much of fashion relies on similar elements – things are trendy (what one wants fashion to be, generally) because they follow the trends – this could create serious limitations for all but the most powerful and branded designers. Shirts and dresses just don’t really have the capacity to be as inherently different as novels and screenplays, and they shouldn’t have to be.
David Bollier at the Lear Center notes:
Copyright protection for clothing would shut down the robust competition and creativity that allows this great global industry to develop new ideas and trends. Big-name fashion houses could monopolize a design, and then sic their lawyers on competitors who dared to do what they have always done – produce “substantially similar” shirts, trousers and jackets.
Do we really want judges deciding whether Donna Karan’s latest line of dresses ripped off a previous designer?
We already know the answer: Of course she did! Fashion is based on constant borrowing, imitation and transformation of prior works. While there are obviously many creative geniuses in the fashion world – especially in the timing of their new designs – no one is wholly “original.” Giving exclusive property rights based on some slippery, legalistic notion of “originality” would undercut the energetic creativity and imitation that is the engine of the fashion business.