Copyright Law is something that all design firms must take into account. When one is involved in a creative endeavor such as articulating a vision for buildings, houses, kitchens, lounges, or marketing, it only makes sense, given the law’s opportunity to do so through copyright or trademark, to try and protect the fruits of one’s labor. The same goes for fashion design.
Professors Kal Raustiala of UCLA Law and Christopher Sprigman of UVA Law write an interesting article (also linked here) on the subject at The New Republic. They begin by describing movement by our noble Democratic legislature to give copyright “protection” to fashion design beyond what is already granted:
Just before the congressional recess this month, Schumer introduced a bill that he claims would help the U.S. fashion industry by extending copyright law to cover fashion designs. Copyright law currently protects certain embellishments, and trademark law protects labels as well as logos, such as distinctive pocket stitching on jeans. But design–the cut, shape, or overall appearance of a dress or shirt–is not currently protected. A similar bill, titled the Design Piracy Prohibition Act, is under consideration in the House. Like Schumer’s legislation, it would outlaw designs that are “substantially similar” to registered designs.
While this may no doubt please some design firms, it ought to distress most others. With only a minimum of government intervention so far, and copyright is certainly a government intervention, fashion has almost reached that point of equilibrium where consumers and producers most benefit. With the advent of unnecessary copyright restrictions, deadweight losses loom.
By allowing the copying of attractive designs, current law fits well with the industry’s basic mission–to set new fashion trends and then convince us to chase them. And the trend-driven copying of attractive designs ensures that those designs diffuse rapidly in the marketplace. This, in turn, makes the early adopters want a new style, because nothing is less attractive than seeing your carefully chosen clothes on the backs of the hoi polloi. In short, copying is the engine that drives the fashion cycle. […]
If Schumer’s bill passes, we will see cease-and-desist letters flying about, and even a flurry of expensive, time-consuming lawsuits with designers arguing over who was the originator of every new trend–and more frighteningly, judges and juries deciding who is right. That’s not good for creativity; it’s just a distraction. And it’s an especially silly distraction in the fashion industry, where every new fashion draws inspiration from fashions that came before. The entire industry engages in recycling, recontextualizing, and reinvigorating the past.
The article goes on to say that by all accounts, the $350 billion/yr industry is thriving. I buy this statement intuitively. We see a bounty of different fashions coming to the fore, coming from all directions! Sure, the elites have their havens and can impose fashion from the top — but that’s not what many fashion shows are ultimately about. Fashion shows are a whole other kind of art form. They try to generate new ways of looking at fashion, clothing, and being by sparking our brains through sometimes free association or themes. I don’t even know how to describe the photo on the right. Taken from Style.com, it is from Balenciaga and offers this caption:
Another master class in extreme cutting and exaggerated silhouettes, pronounced shoulders, tiny waists, abbreviated hems—from Nicolas Ghesquière, this time in lush, gorgeous florals. Wearable? Yes, for the brave. Others have only to wait a season or two until the designer’s ideas trickle down, as they inevitably do
And no one can get a copyright to an idea. Still, it would be a shame if the law prevented fashion from working as it does so well. There are losses sustained from copying, and there are many law students I know who purport to be experts at identifying Burberry fakes, but this is far outweighed by the benefits of constant innovation and trends.
One might more daringly argue that the same could be said for music, painting, or any other art form — that we protect too much of this, that artists would still thrive without copyright in this world where goodwill accounts for most everything. They might well be right. But that is a battle for another time.
What can you expect from a world where copyright protects more fashion design firms? Higher costs to entry, meaning fewer competitors, higher prices, and far less change.