Fashion Designers Turning To Patents To Protect Their Designs (And Kill The Industry)

from the how-short-sighted-can-you-be dept

Thu, Apr 3rd 2008 7:33pm — Mike Masnick

Five years ago we pointed out that the entertainment industry could take a wonderful lesson from the fashion industry. After all, here was a highly competitive, extremely profitable, exceptionally innovative creative industry -- and it was doing all that without copyright protection. It seemed to show quite the opposite of what many in the entertainment industry predicted would happen without copyrights. Unfortunately, though, the lessons seemed to go in the other direction. The fashion industry got jealous of the entertainment industry's ability to crack down on innovation with copyrights and pushed Congress to introduce new legislation that would add a copyright for fashion design. Recently such laws have been getting a big push from politicians who are pandering to the fashion industry. Of course, studies have shown that the very reason the industry has thrived was because the lack of IP protection. In fact, one bit of research showed that adding IP protections to fashion could kill the industry.

While that may sound counterintuitive at first, it's not once you understand the market a little bit more. Fashion is a trend industry. You need a trend to make something popular and the only real way to get a trend is when designers are copying each other. Without that ability trends don't show up, and the demand for the latest "trend" dries up. On top of that, having copycat designs on the lower end actually act as a "signal" that a high-end designer is on to something. It helps prop up the price of those name-brand designs, while making similar copycat designs more affordable to a lower end of the market that would never buy the high end designers. It's both a way of establishing a larger market and doing price discrimination.

However, it appears that fashion designers still don't want to understand the economics of intellectual property and why it may hurt them. Since the bill for copyrights on fashion designs is still making its way through Congress, designers have taken it upon themselves to start using design patents instead and enforcing those rights aggressively (thanks to Gary for sending the story in). Considering that the recording industry's aggressive enforcement of copyrights has contributed to a massive slide in revenue for that industry, you would think that the fashion industry would think twice before following it down that path.

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Filed Under: copyright, fashion industry, patents

28 Comments

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sikantis, 3 Apr 2008 @ 7:54pm

competition
Here like elsewhere competition is dashing the hope of positive cooperation.
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- Zubin, 3 Apr 2008 @ 8:05pm
  
  Re: competition
  It's not competition that's doing it, it's desire to remove competition (desire to monopolize), combined with protectionism.
  
  Positive cooperation, however, is a way to defeat unneeded protectionism, as we've begun to see in the F/OSS community and more recently in the music industry.
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  - Anonymous Coward, 3 Apr 2008 @ 8:51pm
    
    Re: Re: competition
    Ya know what? I blame Bush for this.
    
    Seriously think about it. Bush has done a lot of damage to the United States. All in the name of "protecting" it.
    
    Others are just taking the same mentality (eg "protecting" things *wink wink*) and applying it elsewhere.
    
    You'd see it more places if there was more opportunity to do such things.
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smc, 3 Apr 2008 @ 8:57pm

too either/or -- protect without being too stringe
Love your stuff, but think your analysis of this issue is too either/or. Creative derivation and trend creation are *very* different from knockoffs and counterfeits -- which not only destroy profits but affect socioeconomics (e.g., human rights issues behind counterfeit goods). Unlike the music industry, which doesn't easily offer low-price or mix-n-match options for consumers, the fashion industry offers many diffusion lines, specialty collections, and other options for mass consumers. So affordability/access isn't the issue; just look at Target, which gets this right. Bottom line: no one deserves to see their creative designs blatantly copied. There are ways to protect creativity and encourage trend creation without stifling creative derivation. "Protection" doesn't have to mean stringent control...
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- Anonymous Coward, 3 Apr 2008 @ 9:31pm
  
  Re: too either/or -- protect without being too str
  You're right protection doesn't have to mean stringent control. But I bet my life that if this legislation passes it will mean just that.
  
  Also, this will give knock off products made in China more demand, as suing them over infringement will be much harder (impossible) and they know it. While harmless Sally Q, here in the "good 'ol us of a" will get her stockings sued off.
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- ZeTron, 3 Apr 2008 @ 9:33pm
  
  Re: too either/or -- protect without being too str
  And by "more demand" I mean China will be the only cheap option left.
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- diazamet, 4 Apr 2008 @ 12:51am
  
  Re: too either/or -- protect without being too stringe
  The thing that get me is, designers are trying to get this legislation to protect *their* designs but the are very few designs (in any field) that don't "borrow" from previous designs.
  
  It seems to me that current designers don't mind ripping off previous designs but don't want to return the favour to future designers.
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  - smc, 4 Apr 2008 @ 5:44am
    
    Re: Re: too either/or -- protect without being too stringe
    Agree with all of the comments/responses above -- but to reiterate, "infringement" should only apply to true ripoffs and counterfeits -- *not* to borrowing ideas. Because yes, as Mike originally stated in covering this topic, the design world IS about successfully borrowing ideas and advancing innovation in design. But borrowing does NOT= ripping off. However, as Steve notes making these judgment calls is certainly a slippery slope. Even more reason to evaluate this issue in terms of degrees v. either/or extremes... ~sonal
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  - Dee, 15 Dec 2009 @ 5:38am
    
    Re: Re: too either/or -- protect without being too stringe
    i totally agree...because i plan to be a designer in the future and i get some of my ideas from them...plus there isn't much different you can make.
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- chantal, 17 Jan 2010 @ 7:20pm
  
  Re: too either/or -- protect without being too stringe
  How would you suggest as you mentioned in your 2nd last sentence... 'there are ways to protect creativity and encourage trend creation without stifling creative derivation?'
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Steve R. (profile), 4 Apr 2008 @ 5:21am

When is a Design Different?
This is real slippery slope stuff. If you patent a design with three buttons using the color blue and someone comes out with a four button design in black is that infringement? Designs are subjective with infinite variations, we will have endless lawsuits.
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John, 4 Apr 2008 @ 6:14am

Lessons
Pity the rules don't apply to software.. Or do they? Can copy cat technologies produce results? No I think its brand that protects the software engineers and Microsoft is the king of copy cat and its just their marketing muscle that makes the corporation work. John http://www.maroonbox.com
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Cygnus, 4 Apr 2008 @ 7:49am

The only way to protect clothing through patent law is a design patent. Design patents are ridiculously narrow. The best that can be said about them is that they protect against true knock-offs. Which is as it should be.

I wonder what sort of copyright protection a clothing designer would seek. Or, rather, what modification to copyright law would be sought. As it stands, clothing, being a "useful article" (technical term), is copyrightable only if the design incorporates pictorial or graphic features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the clothing.
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- Cygnus, 4 Apr 2008 @ 8:47am
  
  Re:
  >>
  >> The only way to protect clothing through
  >> patent law is a design patent.
  >>
  
  Let me re-phrase: the only way to protect the aesthetic design of clothing (which is what we're discussing here) in patent law is with a design patent.
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- Steve R. (profile), 4 Apr 2008 @ 8:52am
  
  Re: Shirt Patent
  A cloth wrap made of various materials either natural or synthetic of one or more colors with one or more holes to allow the insertion of body appendages that is either a partial or full torso wrap which may uses fasteners of any type to connect portions of the material or which may consist of one unified length of cloth.
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Thom, 4 Apr 2008 @ 7:56am

Good Riddance
Good riddance to the fashion industry. It's one of those ridiculous industries revolving around ditzy ideas that never should have been concieved much less brought to fruition - much like all of modern art. The only things I'll miss when the industry dies are models like Heidi Klum and shows like Project Runway. Grrrrrowwwllll.
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Rekrul, 4 Apr 2008 @ 8:59am

Good riddance to the fashion industry. It's one of those ridiculous industries revolving around ditzy ideas that never should have been concieved much less brought to fruition - much like all of modern art.

Wait, you're saying that people don't actually buy and wear those fashion lines that look like they came out of a futuristic Japanese fighting game? :)
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Jesse, 4 Apr 2008 @ 9:04am

I think it would be really cool if the fashion industry did suffer massive losses after engaging in copyright protections. It will provide for a really interesting case study for the rest of us; no more will proponents of strong IP be able to argue that it is pirates and not poor business models that are ruining their businesses.
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Trish, 4 Apr 2008 @ 9:39am

Learn to sew, play guitar, write software... don't need em
In the future I guess we can expect the lower-end clothes stores to carry monochromatic polos and blue jeans only, cause all the 'good' designs are protected by big name designers. Those who want to be fashionable will either need to spend a week's salary on just a few items, or learn to sew. And Lord knows it would be awful if the design I wanted was available at an affordable price, I might actually be making the economy roll by buying that instead of reverting back to the nineteenth century.
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Neverhood, 4 Apr 2008 @ 10:57am

Killing itself
@Mike
You could also argue that the reason why people use so much money on clothes is that the trend changes so fast, and make people buy more to catch up.

With the trend changing much slower, the market will shrink considerably.
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In fashion, 4 Apr 2008 @ 11:39am

Long Run
In the long Run this will hurt more than help . In 20 years when 90's trends come back as retro Chic noone will be able to advance the style because the designs will all be "protected" we will see a huge halt in progress and only a
huge indie-fashion/social revolution will save the fashion industry. Grunge will come back and it will be lamer than ever.

Fashion has always been cyclical and IP protectionism puts a Berlin style wall up in between end and re-beginning. *

* All of the above is only in relation to countries that adopt the laws being discussed. The places that don't will become the trend leaders as they will not be hindered by the Laws of other places.
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Clueby4, 4 Apr 2008 @ 6:24pm

Waste of Patent Office's Time
What a waste of the Patent Office's time.
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Gerald L Thomas, 4 May 2008 @ 12:52pm

U.S.Patented Buckle Devices..
I'm the inventor of this "buckle" device, that would revolutionizes the way we "wear" them...our communication and entertainment devices. Adding, to a more "fashionable" way to wear electronics. I would like to see these devices
in production, and I do own the patent; think of the many "knock-off" that will incurr, after the production of "high" end devices? I'm am the designer, of this fashionable, patented, wireless buckle, accessory..the future of fashion and communication, technology is merging.

I would like to sell patent...or to give licensing to other
designers.

Information: Gerald Thomas akata@sbcglobal.net
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EL, 2 Jan 2009 @ 11:48am

Protecting Clothing Designs
Hello,

I just read the article on IP for clothing designs. I agree that there should be protection of a new/unique design for a given period of time. If everyone copies your design, how is it that the person who created the design profits from it. It would be a great loss to the creator. However, to spread the wealth and buz, the creater can license the design to others. That way the creator does not lose out on the profit and others can benefit as well.

Thanks for allowing me to share my comments.
EL
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alante granger, 28 Jun 2009 @ 12:17pm

i would like a fashion patent..
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Anonymous, 4 Feb 2010 @ 1:17pm

Patents to protect fashion
Those designers are so dumb. Fashion is derivative - designers inspire each other. Although the intention is to stop knock-offs, the lawyers are the ones that will make out like bandits. By the time the lawyers get through, they'll have the "real" designers suing each other.
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ffd, 4 Mar 2010 @ 8:26am

Pro Patents to protect fashion
Yes, but it depends on the DEGREE OF INSPIRATION of the designer (gay or female).

Yes, fashion is cyclical. It gets bigger with new 'style derivatives. Like the gay fashionista's a-hole.

People need to STOP COPYING OFF other designers. Derivatives of derivatives is silly, because of the ME-TOO bandwagon jumpers want to take shortcuts in creativity.

I am for this change. Kill all the copycats.
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ouch, 29 Jun 2010 @ 12:44pm

I went to art school and I can say people were always copying me. It frustrated me because they got credit for work I had created first. Meanwhile, I was struggling through bad critiques while half the "good" class was getting good attention for ideas they STOLE from me. Yes, designers inspire eachother. But copying is a different thing. Copying means using the exact same fabric, same cut, same thread, same line, same closure and same "inspiration" to discuss the design. There is a difference and you wont feel it until you're in the fashion industry. Good luck to all the ignorant fools.
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