Running Head: CURTAILING COPYCAT COUTURE

Curtailing Copycat Couture: The Past, Present, and Future of the Intellectual

Property Protection in the Fashion Industry

Annie Sheoran

University of California, Berkeley

College Writing R1A

Curtailing Copycat Couture: The Past, Present, and Future of the Intellectual

Property Protection in the Fashion Industry

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In 1984, a husband-and-wife started a cheap-chic fashion company in a low-

rent area of Los Angeles. Twenty two years later, in 2006, the company reached $1

billion in revenues. And currently the fashion retailer operates more than 450 stores in

nearly twenty countries, one including a four-level, 90,000-square-foot building

equipped with 151 fitting rooms in New York City's Times Square selling trendy clothing

at affordable prices (Billard, 2010). However, the "cheap-chic" fast fashion giant,

Forever 21, has an interesting twist in its success story: the mega retailer has no design

team of its own ( Casabona, 2007) . Instead, it picks up the latest run-way hits,

duplicates them, and sells them at a considerably low price, sometimes even before the

originals hit their own markets (Ferla, 2007). Surprisingly, Forever 21 is not doing

anything impermissible by the law. While many designers, like Anna Sui and Diane Von

Furstenberg (Wilson, 2007), have filed lawsuits against Forever 21, this era of copycat

couture offers the designers limited legal remedies. This is because the U.S.

intellectual property (IP) law, currently does not provide protection for an actual fashion

design itself, but only the logos and brand names of fashion houses as well as the fabric

prints used on garments (Gottlieb, 2010). As a result, companies like Simonia Fashions

sell identical copies of a Tory Burch dress worth $760 for only $260 (Wilson, 2007). This

lack of protection for fashion designs stems from U.S. copyright law itself, which states

that copyright protection does not extend to useful articles. Fashion is not seen as an art

form in the 21st century and, thus, one of the most creative aspects of the fashion

industry- the actual design of the garments- receives no effective legal protection under

the current U.S. legal system.

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Intellectual property (IP) refers to creations of the mind for which a monopoly is

assigned to designated owners by law (Wikipedia, n.d). IP law is vital because the act of

imitation is rarely seen as a form of flattery among the artists of 21st century. But where

do the legal boundaries draw themselves between whats inspired and copied? Fashion

has long enjoyed a trickle down effect the popular styles on runways soon enough

always find themselves on the racks of high street stores even before models can turn

around. In such cases, designers lose the incentive to innovate and the opportunity to

gain goodwill and reputation. This issue is even more severe for independent designers

and small and medium-sized enterprises (SMEs), who do not have the manufacturing,

production, and financial capabilities of major fashion houses and retailers. For

instance, when emerging designer Narciso Rodriguez designed Carolyn Bessette

Kennedy's wedding gown, copiers sold 8 million copies , while Rodriguez was able to

sell only forty-five (Paul, n.d). In the past, the original designers maintained their

position as "innovators" of new trends because copyists could begin their widespread

imitations only once the original designers delivered their designs to the market. But

maintaining the same position is nearly impossible in the Internet Age: for instance

photos from the ongoing New York's fashion week are already available online.

Knockoffs flood stores long before the originals arrive (Wilson, 2007). Therein lies the

chief problem. As industry expert Gioia Diliberto notes, " designer's success depends on

the power of her clothes to command attention. If knockoffs-even poor imitations-show

up first, the power is lost. " IP law provides a fast and relatively simple means of gaining

protection for an original piece of work. And it indeed is the best solution to the

designer's dilemma.
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The debate surrounding IP protection in the fashion industry dates back to the

early 1900s and has been an ongoing topic on the U.S. legislative table for several

decades. Copying has long been a widespread practice throughout the world and U.S.

fashion industry has had a "rich tradition of knocking off European designs" from as

early as the inter-world war periods (Sprigman, 2006). For instance, in search of " line-

for-line copies" of Paris couture originals, 2000 women went to Ohrbachs " semi-annual

fashion" phenomenon (Wade, n.d). The arduous process of travelling to France,

measuring each seam of the original design, and returning to the United States to

manufacture copies from their notes, did not stop the U.S. manufacturers from imitating

the designs and soon knockoffs catapulted to fill the U.S. retail market. As this practice

of copying designs spread, manufacturers decided to take action by setting up the

Fashion Originators' Guild of America. Established in 1932, the Guild monitored retailers

by giving " red-cards" to those who sold knockoffs and keeping a record of original

designs (Surowiecki, 2007). The Supreme Court's first fashion design protection case

arose in 1941 against the Guild. The Court ruled that the Guild's requirement that

designers should register their original sketches was a restriction of trade. Thus, the

Court effectively ended the first design protection scheme that this country has

witnessed and marked the beginning of the legal copycat couture that still prevails

today. The IP framework prevalent in fashion designs today is essentially the same as

that which existed in the 1930s during the era of the Fashion Originators' Guild.

Currently, the United States is somewhat of an anomaly in the global fashion

market because it still has to completely develop the IP regime that explicitly protects

fashion designs. U.S. is one of the few remaining markets that is still tolerant towards
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the " copy-and-sell scheme, whereas, the two markets- European Union and Japan-

that along with the United States lead the fashion industry have already adopted laws

that protect fashion designs. A vast majority of the European countries, especially the

western European countries, have domestic legislation. For instance, in France, the

famous Declaration des droits de lhomme of 1789, was issued during the revolution,

which was " the fundamental right of a human being to own the creators of his mind "

and therefore, IP protection is vital and sacred (Coblence, n.d). In addition, the statistics

reflect the amazing wealth of creativity of Italian fashion, of French fashion, of Japanese

fashion which are governing under the IP framework. In most civilized and industrialized

nations, the protection is an efficient deterrent, whereas, in the U.S. there is a certain

standardization of fashion (Coblence, n.d). Copycat Couture stifles the creativity of

American fashion and undoubtedly jeopardizes the American economy.

While the current trademark law can adequately protect logos, names, and

other symbols placed on apparel, it does not extend to the entire apparel. The Lanham

Act, which governs federal trademark law, defines a trademark as a word or symbol

used by a manufacturer to "identify and distinguish his or her goods . . . from those

manufactured or sold by others. " For example, the law protects a Louis Vuitton purse

with the renowned LV logo, but it does not provide enough rights to prevent the actual

designs from being imitated and sold in the markets at a significantly lower price and

before the actual designs hit their own markets. Alternatively, designers can turn to U.S.

patent law, which issues the utility and design patents, that provides the most robust

form of IP protection for productive inventions and original designs. Design patents in

particular protect the "configuration or shape of an article, the surface ornamentation

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applied to an article, or the combination of configuration and surface ornamentation

(USPTO, 2005). " However, the rigid criteria, such as presenting a non obvious

improvement over prior art, for patent qualification have averted designers from seeking

this option for fashion designs. This scenario leaves the U.S. copyright law as the final

and most logical option for the protection of fashion designs as it protects " original

works of authorship fixed in any tangible medium of expression (17U.S.C, 2006). "

Compared to trademark and patent protection, copyright protection is quick and

convenient to obtain, as the designs acquire constructive legal protection at the instant

they are drawn on paper. But the copyright protection extends only to the completely

decorative elements of the garment, like the patterns or images on the fabric, and not to

the design itself. It excludes "useful articles" that have intrinsic utilitarian functions but

protects "original expressions which include graphics and text (Wade, n.d).

Since 1914, Congress has considered over 70 bills to provide protection

against fashion design piracy, but no bill has yet been passed. In 2016, we saw a surge

of legislative activity for fashion design protection. The constant evolution of these bills

and the ongoing debates on curtailing copycat couture illustrates the concerns and

increasing need of fashion design protection. The first version of the Design Piracy and

Protection Act (DPPA) was presented on March 30, 2006 by Representative Bob

Goodlatte in the House of Representatives (Wade, n.d). However, while it garnered

support by prominent designers and the Council of Fashion Designers of America

(CFDA), the bill was stalled in the committee as it faced opposition, most notably from

the American Apparel & Footwear Association (AAFA). The most recent DPPA was

reintroduced in the house by Representative Delahunt. The DPPA delineates closely

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and substantially similar standards, outlines the proposed searchable fashion design

database, and provides three year term of protection. Furthermore, on August 5, 2010

Senator Schumer introduced the Innovative Design Protection and Piracy Prevention

Act (IDPPPA) in the Senate. Recently, Representative Robert Goodlatte also introduced

the IDPPPA in the House, and it was subsequently referred to the House Committee on

the Judiciary, and later referred to the Subcommittee on Intellectual Property,

Competition and the Internet (Wade, n.d.). Like its predecessor, the IDPPPA would

amend 1301 of the Copyright Act to extend protection to fashion designs. The

IDPPPA limits the term "Fashion design" to the original elements or arrangements of the

article of apparel to those that are the result of a designers own creative endeavor; "and

provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior

designs for similar types of articles (Elman, 2008).

While the IDPPPA is a beneficial step in striking a balance between the

protection of designs and the productivity of the fashion market, it nonetheless has not

struck a balance between the benefits of copying and moral rights. Moreover,

administrative costs of implementing this type of legislation may outweigh

corresponding benefits in the industry. Therefore, it is important to question what kind of

ownership model, in a digital world, will lead to the most innovation? One of the future

routes could be the implementation of a fashion-design licensing scheme, which would

provide a private, contractual means for designers, retailers, and fashion houses to

enter into mutually beneficial agreements to exploit their fashion designs. Another ideal

route could be the right of attribution as it would achieve the goal of protecting the name

of the designer without upsetting the system. Designers strive hard to build a brand
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name and to create a unique aesthetic. Throughout history, designers have sought to

protect their attribution rights in their collections such as the thumbprint labels in

Madeleine Vionnets atelier (Wade, n.d.). Compared to the other moral rights, the right

of attribution " the artists right to insist that her name continue to be associated with

work she has produced and to insist that her name not be used on work she has not in

fact produced" is more pragmatic and likely to be accepted as it responds to the

concern for emerging designers (Wade, n.d). In the alternative, the Council of Fashion

Designers of America could create a collective mark in which designers who are part of

the organization would be able to join and, thus, implement a fashion mark mechanism.

The CFDA then could set standards for original designs, which may be similar to the

proposed substantially identical standard in the IDPPPA. Like the right of attribution, the

fashion mark mechanism, would strike a balance between moral rights and creative

freedom without making a drastic change to the IP regime in the fashion industry.

The advent of the Internet and the advancement of digital technologies has

greatly affected the fashion industry and other industries. Fashion copycats may now

easily reproduce designs at low costs and make the imitations available at market-

shattering time by taking digital photographs of fashion items on the couture runway and

transmitting these photographs to overseas factories. In this fast and transparent

fashion world, fashion houses have a new pressure to protect their IP because the line

between design infringement and " pure inspiration" has become even more blurred. In

light of these changing circumstances, the Innovative Design Protection and Piracy

Prevention Act strives to strike a balance between the need to protect innovative

designs and the need to provide enough legal flexibility for fair use of these designs. Yet
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the IDPPPA on its own is not fully robust and has its shortcomings such as increased

costs and a narrow scope of application. Thus, this essay proposed that, in order to

establish a mutually beneficial relationship among the fashion house, designer, and

retailer and extract the most value out of each fashion design's IP, IDPPPA be coupled

with a licensing business model, right of attribution or a fashion mark mechanism. The

price tags on the " cheap-chic" outfits at Forever 21 may increase by a few dollars with

the implementation of this robust protection model. But a brighter, healthier, and more

vigorous future for the fashion industry in which collective efforts, rather than imitation,

fosters the creation of innovative designs is definitely worth more than the few extra

dollars.

References

Forbes.com. America's Largest Private Companies, #103: Forever21. Retrieved from

https://www.forbes.com/largest-private-companies/list

Mary Billard. (2010, June 24). Park As Long As You Like. N.Y. Times at E6.

Liza Casabona. (2007, July 23). Retailer Forever 21 Facing a Slew of Design

Lawsuits, Womens Wear Daily. ( " Forever 21 does not have its own design

team, and in litigation has said it is simply purchasing the designs created by its

Vendors. "). In a recent interview, a Forever 21 executive noted that the

company has "gotten much better at [its] processes" and is attempting to put

together its own design team, but the specifics of this development have been

concealed as " a trade secret. "

Ruth La Ferla. (2007, May 10). Faster Fashion, Cheaper Chic. N.Y. Times.
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Eric Wilson. (2007, September 4). Before Models Can Turn Around, Knockoffs Fly.

George Gottlieb. (2010). An Introduction to Intellectual Property Protection in Fashion,

in Fashion Law: A Guide for designers, fashion executives, and attorneys.

Johanna Blakely. (2010, April). TEDx Talks. Lessons from Fashions Free Cultures.

IP definition. In Wikipedia. Retrieved on September 11 from

https://en.wikipedia.org/wiki/Intellectual_property

Joanna Paul. (n.d). Piracy Paradox is So Last year: Why Design Piracy Prohibition is

the New Black.

Margaret E.Wade. (n.d). The Sartorial Dilemma of Knockoffs: Protecting Moral Rights

without Disturbing the Fashion Dynamic.

James Surowiecki. (2007, September 24). The Piracy Paradox, New Yorker. ("

[American fashion manufacturers] set up the Fashion Originators ['] Guild of

America to monitor retailers and keep track of original designs .... " ) .

David Weise. (n.d). Transcript: Interview with Alain Coblence.

Christopher Sprigman. (2006). The Fashion Industrys Piracy Paradox.

USPTO (U.S. Patent And Trademark Office). (2005). A Guide To Filing a Design

Patent Application. Retrieved from

http://www.uspto.gov/web/offices/com/iip/pdf/brochure_05.pdf.

17 U.S.C. 102(a). (2006).

Victoria Elman. (2008). From the Runway to the Courtroom: How Substantial Similarity

Is Unfit for Fashion. Under the Copyright Act, the design of a useful article is

considered copyrightable " insofar as the design incorporates pictorial, graphic,

or sculptural features that can be identified separately from, and are capable of
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existing independently of, the utilitarian aspect of the article. "