Copyright Law Is Not Supposed To Protect Someone From Being Upset

from the shouldn't-law-professors-know-this? dept

Tue, May 3rd 2011 10:05am — Mike Masnick

Susan Scafidi, a law professor focused on fashion law, has been one of the key driving forces behind one of the least needed, most pointless ideas in a long time: the march to extend copyright laws to fashion. The economic evidence on this is almost entirely in agreement: the fashion industry thrives without fashion copyright. In fact, there's tremendous evidence that the lack of fashion copyright helps it thrive in a variety of ways: it increases the dispersion of trends, by allowing copycat designers to spread the trends more widely, more quickly (especially in the lower end of the market). This actually increases the value of the high end designers, by making people aspire for the real thing. It also encourages ever more innovation and new ideas in the field, because designers have to keep trying to come out with something new.

And yet, for reasons that remain unclear, Scafidi continues to lead this charge for fashion copyright. In some interviews, she cleverly mixes counterfeits with legal copies to confuse people who don't understand the issue.

But in a recent blog post, she seems to explain her reason for supporting fashion copyright: because she doesn't want people to feel bad. At least that's the only way I can understand her post about copying the royal wedding dress, which kicks off with this story:

At the wedding of a twin years ago, a group of friends gathered around the bride at the reception to compliment her dress. Her sister and maid of honor, who was to be married only a few months later, added, "You look beautiful. I should wear it too."

The rather unlovely bride -- at least in terms of temperament -- turned and snapped, "Why would I let you do that?! We're already identical, and this is my dress!" An awkward silence fell as the twin sisters glared at each other.

Of course, this has absolutely nothing to do with copyright. The proper response from a policy perspective is so what? Copyright law has never been about helping people avoid "awkard" silences and angry siblings. Copyright has never concerned itself with the idea that someone might "feel bad" that someone else copied them. Copyright is about promoting the progress of science. It seems bizarre that Scafidi would so misrepresent the very basis of copyright law in an attempt to make an emotional argument to push for an unnecessary change to copyright law that would do plenty of harm without really helping anyone.

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Filed Under: copyright, fashion, feelings, royal wedding

66 Comments

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The eejit (profile), 3 May 2011 @ 9:31am

Wow.
Why does Law always attract those who need to lie, cheat and steal their way to wealth?
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Anonymous Coward, 3 May 2011 @ 10:19am

Re: Wow.
So it's a profession for Liars And Weasels?
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ChurchHatesTucker (profile), 3 May 2011 @ 10:24am

You're kidding me
I've been saying for years that copyright essentially boils down to "don't dress like me!"

The fact that a copyright maximalist is citing an example of exactly that has me convinced that irony is indeed dead.
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Donnicton, 3 May 2011 @ 10:24am

Re: Re: Wow.
It's a trap!
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Anonymous Coward, 3 May 2011 @ 10:38am

Sibling jackassery =! need for new bad law.

And, if Scafaldi was anything like mature or creative, she'd see the situation as an opportunity instead of an insurmountable problem: show and sell the unimaginative twin a better dress than bridezilla's.
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Chris Brand, 3 May 2011 @ 10:45am

So...
the moral of the story is that copyright is for bitches ?
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Matthew A. Sawtell, 3 May 2011 @ 10:47am

That "Twin" Story sounds more like...
... Daffy Duck screaming "Mine, mine, mine!" as he attempts to shove the Genie back in the bottle in the classic Looney Tunes take on the story from 1,001 Arabian Nights.
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Hiiragi Kagami (profile), 3 May 2011 @ 10:49am

I smell...
...another Nina Paley comic currently in the works.

This should be good.
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Nick Dynice (profile), 3 May 2011 @ 10:50am

Re:
She is a lawyer. She probably wishes she was a designer.
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John Doe, 3 May 2011 @ 10:51am

Copyright seems to have that affect on people
I don't know why, but the discussion of copyright with my friends and coworkers seems to trigger one of two reactions. Either their eyes glaze over in disinterest or they start frothing at the mouth and stutter and stammer about some kind of "moral" issue.

People seem to see some kind of moral problem with copyright and the new digital economy. I try to tell them it isn't about morals, it is about economics but they can't take that step. The digital cat is out of the bag and he ain't going back. So the content industries need to deal with it.
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FUDbuster (profile), 3 May 2011 @ 10:55am

But in a recent blog post, she seems to explain her reason for supporting fashion copyright: because she doesn't want people to feel bad.

I just read her article, and nowhere did I see her say that the anecdote about the twins was in support of any argument about the need for fashion copyright. I don't follow your reasoning.

Of course, this has absolutely nothing to do with copyright.

Nor did she claim that it did. She said it was possibly a faux pas.

Copyright law has never been about helping people avoid "awkard" silences and angry siblings. Copyright has never concerned itself with the idea that someone might "feel bad" that someone else copied them.

She didn't claim that it was.

It seems bizarre that Scafidi would so misrepresent the very basis of copyright law in an attempt to make an emotional argument to push for an unnecessary change to copyright law that would do plenty of harm without really helping anyone.

It seems bizarre that you would so misrepresent this article in an attempt to make an argument to blast copyright law.

Snore. Slow news day? You really are stretching credulity here.
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Jay (profile), 3 May 2011 @ 11:04am

Re:
"I just read her article, and nowhere did I see her say that the anecdote about the twins was in support of any argument about the need for fashion copyright. I don't follow your reasoning.

Nor did she claim that it did. She said it was possibly a faux pas."

"For the legions of bridal, prom, and special occasion designers queuing up to copy Kate's bridal gown, the issues of identicality are less social and more economic and legal. How can copies be made at the greatest speed and lowest price? And how close is too close, legally speaking?"

Copyright has never concerned itself with the idea that someone might "feel bad" that someone else copied them.

She didn't claim that it was.

"As copyists 'round the globe scream for their seamstresses, dismiss their beaders, and buy as much lace as possible, they'll need to be wary of being caught in their own netting -- although it's more often the fabric mills that are responsible for printed patterns and lace designs sold to clothing manufacturers.
"

It seems bizarre that Scafidi would so misrepresent the very basis of copyright law in an attempt to make an emotional argument to push for an unnecessary change to copyright law that would do plenty of harm without really helping anyone.

It seems bizarre that you would so misrepresent this article in an attempt to make an argument to blast copyright law.

In the U.S., design pirates sailing the white-capped waves of bridal lace and silk face few or no obstacles. Intellectual property law only rarely protects dress designs, though the instant fame of Kate's dress could support a trade dress argument. (Contrary to the New York Times article on the subject, no "subtle modifications" are required by current U.S. copyright law -- at least until the eventual passage of the IDPPPA or a similar bill.)

I believe Mike did an accurate job of stating the article. You might want to re-read it for increased understanding.
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Josef Anvil (profile), 3 May 2011 @ 11:05am

Next step...
The older twin should copyright her DNA and sue the pants of her sister!
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John Doe, 3 May 2011 @ 11:09am

Re:
Where to begin. First, she opened up her article with the anecdote of the twins so it must hold some prominence in her argument.

In the U.S., design pirates sailing the white-capped waves of bridal lace and silk face few or no obstacles.

Of course, most manufacturer who find themselves "inspired" by Kate's gown are old hands at the imitation game, and they know their local laws well

She does call people who copy fashion pirates, thus trying to compare them to people who copy movies and music. Then she goes on to put the word inspired in quotes to show they are merely copying, thus implying that is a bad thing.

So you see, the article is entirely about fashion and copyright. If you are going to misrepresent the article and Mike's discussion of it, you are going to have to do a better job. People, other than you obviously, can read for themselves.
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Rich, 3 May 2011 @ 11:12am

Re: Re:
He should really change his name to "FUD Packer."
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John Doe, 3 May 2011 @ 11:14am

Re: Re:
One interesting observation here. She does not allow comments on her blog posts and Mike does. Do you think that maybe she can't defend her views and Mike can?

I must say, Mike has spoiled me here. I really get irritated at not being able to comment on other news or blog sites. Even more irritating is being able to comment only after registering.
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Ed Lopez, 3 May 2011 @ 11:26am

She is smart, clever, well dressed, and connected.

But she is not interested in serious debate/discussion, a claim that I base on multiple unanswered emails from me to her. While this might be apropos the author of purely rent-seeking legislation, this doesn't reflect well on someone who is also the founder of an academic center devoted to the study of fashion law.
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Joe Publius (profile), 3 May 2011 @ 11:32am

Re: Next step...
Slow your roll there Josef.

She has to patent her DNA and sue her sister!

Let's keep our IP abuses accurate, for the sake of the artists!
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FUDbuster (profile), 3 May 2011 @ 11:36am

Re: Re:
"I just read her article, and nowhere did I see her say that the anecdote about the twins was in support of any argument about the need for fashion copyright. I don't follow your reasoning.

Nor did she claim that it did. She said it was possibly a faux pas."

"For the legions of bridal, prom, and special occasion designers queuing up to copy Kate's bridal gown, the issues of identicality are less social and more economic and legal. How can copies be made at the greatest speed and lowest price? And how close is too close, legally speaking?"

That quote is about Kate's wedding gown. What does that have to do with the anecdote about the twins? How does the anecdote about the twins support Mike's contention that it was for the purpose of "supporting fashion copyright"? It doesn't. What Mike claimed did not follow from the anecdote. Even if there were fashion copyright, and the twin's dress was copyrighted, the other twin, presumably, could still purchase the same dress. I don't see the connection that Mike is trying to make there.

Copyright has never concerned itself with the idea that someone might "feel bad" that someone else copied them.

She didn't claim that it was.

"As copyists 'round the globe scream for their seamstresses, dismiss their beaders, and buy as much lace as possible, they'll need to be wary of being caught in their own netting -- although it's more often the fabric mills that are responsible for printed patterns and lace designs sold to clothing manufacturers.

Again, no support there. Mike claimed that the anecdote about the twins was somehow for the purpose of showing the need for fashion copyright so that someone won't "feel bad." How does the part you quoted address this claim? I don't see it.

It seems bizarre that Scafidi would so misrepresent the very basis of copyright law in an attempt to make an emotional argument to push for an unnecessary change to copyright law that would do plenty of harm without really helping anyone.

It seems bizarre that you would so misrepresent this article in an attempt to make an argument to blast copyright law.

In the U.S., design pirates sailing the white-capped waves of bridal lace and silk face few or no obstacles. Intellectual property law only rarely protects dress designs, though the instant fame of Kate's dress could support a trade dress argument. (Contrary to the New York Times article on the subject, no "subtle modifications" are required by current U.S. copyright law -- at least until the eventual passage of the IDPPPA or a similar bill.)

Again, no help there. Mike's claim is based on the notion that the anecdote about the twins was for the purpose of showing a need for fashion copyright. It wasn't. The quote you've provided is a statement of fact about the current state of fashion copyright law. The author is not even making an argument there. She's simply stating what the law is.

I believe Mike did an accurate job of stating the article. You might want to re-read it for increased understanding.

You've demonstrated absolutely nothing. Internet pat on the back. Better luck next time.
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Anonymous Coward, 3 May 2011 @ 11:37am

I must wonder if any has read the proposed legislation (incredibly narrow and not copyright based...it is sui generis, like semiconductor and vessel hull are), or ever heard of companies such as Forever 21?
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FUDbuster (profile), 3 May 2011 @ 11:38am

Re: Re:
Where to begin. First, she opened up her article with the anecdote of the twins so it must hold some prominence in her argument.

In the U.S., design pirates sailing the white-capped waves of bridal lace and silk face few or no obstacles.

Of course, most manufacturer who find themselves "inspired" by Kate's gown are old hands at the imitation game, and they know their local laws well

She does call people who copy fashion pirates, thus trying to compare them to people who copy movies and music. Then she goes on to put the word inspired in quotes to show they are merely copying, thus implying that is a bad thing.

So you see, the article is entirely about fashion and copyright. If you are going to misrepresent the article and Mike's discussion of it, you are going to have to do a better job. People, other than you obviously, can read for themselves.

And exactly how does the author use the anecdote about the twins to demonstrate a need for fashion copyright?
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ChurchHatesTucker (profile), 3 May 2011 @ 11:48am

Re: Re: Re:
While I disagree with her, I'm not going to begrudge her not allowing comments. That's a LOT of work to police.
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Ccomp5950 (profile), 3 May 2011 @ 11:52am

Re: Re: Re:
Again, no support there. Mike claimed that the anecdote about the twins was somehow for the purpose of showing the need for fashion copyright so that someone won't "feel bad." How does the part you quoted address this claim? I don't see it.

I'll admit I didn't read the article until I read Mike's take on it so he may have influenced my take on it as well, but it reads like a parable.

The twin getting married today represents the designer made dress, the original if you will.

The twin getting married in a month or so represents the "copycat" dress, it's identical.

The parable shows the social awkwardness and how that should translate into setting some sort of protection up.

Least that's how I read it, is it clear and in your face? No, it appears subtle but mainly because later in the story she goes into how close to "identical" should the line be drawn legally.

Gaging intent is difficult, and Mike made it clear that it's how he read it, your interpretation may be different.
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Ed Lopez, 3 May 2011 @ 12:08pm

I discuss the proposed legislation, within the context of an economic argument that highlights the beneficial roles that fashion copyists play: http://www.thefreemanonline.org/featured/fashion-design-and-copyright/
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John Doe, 3 May 2011 @ 12:21pm

Re: Re: Re:
Funny you only dispute the anecdote and not the rest of my rebuttal. Guess you can't really refute facts.

Anyway, she opens up her article on fashion "piracy" with a story about one twin wanting to imitate another twin and suggesting that it is a bad thing. I guess she has never heard the saying that imitation is the sincerest form of flattery. She is also using the story in an article about fashion copyright so she apparently feels it portrays why fashion copyright is needed. If she had a story that was completely unrelated to imitation/piracy/copyright infringement, then I could understand your confusion.
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FUDbuster (profile), 3 May 2011 @ 1:04pm

Re: Re: Re: Re:
But how in the world does the anecdote about the twins show that the author believes fashion copyright law is "supposed to protect someone from being upset"? It doesn't. Nowhere in the article does the author suggest this. It's a complete and total strawman.

As I've indicated, even if there were fashion copyright law, the sister court still wear the same dress. The whole premise is logically flawed.

Mike, care to explain the connection? Or shall we call on the insects, stage left?
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FUDbuster (profile), 3 May 2011 @ 1:08pm

Re: Re: Re: Re:
Your rebuttal didn't actually rebut or answer my question. In no way did you explain how the author is saying that copyright law is supposed to protect someone from being upset, which was Mike's claim.
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Gwiz (profile), 3 May 2011 @ 1:16pm

Re:
It seems bizarre that you would so misrepresent this article in an attempt to make an argument to blast copyright law.

It seems bizarre to me that try to find fault in everything that Mike writes in lame attempts to discredit him.

Get yourself a girlfriend or a hobby or a life or something. Please.
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Anonymous Coward, 3 May 2011 @ 1:19pm

Re: Re: Re: Re: Re:
Yawn, if I wanted to hear your opinion on the article I would be reading your site ... but I'm no, I'm reading TechDirt because I am interested in Mike's opinion of the article.

You speak as though you were revealing some facts which disprove Mike's facts when in reality you are simply stating an opposing opinion.
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Anonymous Coward, 3 May 2011 @ 1:23pm

Re: Re: Re: Re: Re:
FUDpacker, you are a moron...
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Anonymous Coward, 3 May 2011 @ 1:29pm

Re: Re: Re: Re: Re:
God damn, learn to read.

She opens the article with the anecdote so presumably it is the driving thesis or metaphor for the problem she is discussing. She then goes on to make multiple references to the anecdote throughout her discussion.

YOU may not think it is a good anecdote to describe her thesis. It may, in fact, be a terrible anecdote for illustrating her point. However, that was the anecdote she used, not one about two designers or two lace makers or two seamstresses. She used an anecdote that describes the faux pas or "uncomfortable situation" which can occur with copying.
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Ccomp5950 (profile), 3 May 2011 @ 1:31pm

Re: Re: Re: Re: Re:
You are asking for a clear and concise chain of thought when there isn't one. Mike even made that clear that this is his interpretation of it. It's a valid interpretation. The only one? Probably not. The best one? Again, probably not

Do you have an interpretation of the story other than what Mike said? If so what is it? Next, how would we classify which one is better independent of each others biases?

I see no reason to include the story if it isn't related to the post. In writing I would consider it the "hook".
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Anonymous Coward, 3 May 2011 @ 1:48pm

The rather unlovely bride -- at least in terms of temperament -- turned and snapped, "Why would I let you do that?! We're already identical, and this is my dress!" An awkward silence fell as the twin sisters glared at each other.

Pop quiz! What is the correct way to resolve this problem?

a) A lawsuit
b) Two in the heart, one in the head
c) Civil discourse
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Ccomp5950 (profile), 3 May 2011 @ 2:19pm

Re: Re: Re: Re: Re: Re:
And you are a child, or at the very least your social skills are at the level of a child.

When adults are speaking and disagreeing with one another but are remaining polite, it is inappropriate to call another rude names. If you disagree make effort to discuss your viewpoint but respect the adult on the other side of the table.
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FUDbuster (profile), 3 May 2011 @ 2:31pm

Re: Re: Re: Re: Re: Re:
I read fine. Where in the article does she say anything along the lines of that copyright is "supposed to protect someone from being upset"? Where does she even say that we need fashion copyright laws? She doesn't.
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Colin, 3 May 2011 @ 2:32pm

Re:
I thought it was threaten to cut the dress in half and see which sister objects...
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FUDbuster (profile), 3 May 2011 @ 2:34pm

Re: Re:
I enjoy pointing out the errors and omissions. Are the comments only supposed to be for those with one point of view? Sure feels like it.
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Jay (profile), 3 May 2011 @ 2:51pm

Re: Re: Re: Re: Re: Re: Re:
She had TWO case links in her article, which are in my rebuttal, using her words. I didn't do the html, but they explain that she supports more case law for fashion.
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Ccomp5950 (profile), 3 May 2011 @ 3:08pm

Re: Re: Re:
Generally speaking people visit the blogs (think of them as news editorials) of those they agree with on certain subjects.

Politically I'm a moderate politically speaking and would not find myself happy reading Glen Beck. However Glen Beck will attract those that agree with his positions.

It does tend to become an "Echo Chamber" when you only read those you agree with. Some of the comments you read here being more rude than others are probably victims to this.

I've learned more from 1 person who disagrees with me, than 99 who agree with me.
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Jay (profile), 3 May 2011 @ 3:43pm

Re: Re: Re:
You aren't expressing a view by pointing out errors. You're more or less being contrarian for no possible purpose.
You say that information is missing, but I don't think it is. All you seem to want is to try to prove your own theory, by ignoring anyone else's.
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Jay (profile), 3 May 2011 @ 3:45pm

Re: Re:
Cat fights don't solve problems, but they are fun to watch...
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The Groove Tiger (profile), 3 May 2011 @ 3:47pm

Re: Re: Wow.
Nuclear wessels.
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The eejit (profile), 3 May 2011 @ 3:52pm

Re:
B) always solves the problem. However, you also have this funny little thing called murder....which is a new problem. But hey, at least there's no bickering now!

Optimism!
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Anonymous Coward, 3 May 2011 @ 4:00pm

Re: Re: Re: Re: Re: Re:
A total derivative take on The Anti-Mike too. So unoriginal.
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Anonymous Coward, 3 May 2011 @ 4:02pm

Re: Re: Re: Re:
Just like The Anti-Mike used to do. FUDbuster is nothing more than a copycat.
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Jc, 3 May 2011 @ 4:10pm

I wonder what twin #1 would say when the designer calls her up and tells her she needs to get separate license to wear the dress at her wedding... AND a license to take pictures of herself in it...
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good twin, 3 May 2011 @ 4:23pm

@Joseph Anvil
As a five minute younger identical twin I can't help but get a good chuckle out of your comment.
I'm sorry.. umm.. fashion copyright?
Ya.. whatever Mike said.
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jstim305 (profile), 3 May 2011 @ 4:26pm

Good law professors often use a light-hearted anecdote to make an otherwise dry legal topic more engaging. As should be clear to anyone who reads the original post without an axe to grind, that's what she was doing here--opening a timely review of US-UK comparative law of wedding dress copyright with a funny story about identical twins sharing a wedding dress.

Clearly, it worked.
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Jesse (profile), 3 May 2011 @ 4:41pm

The interesting thing is the quote doesn't even make a strong argument for the emotional "case:"

The rather unlovely bride -- at least in terms of temperament...

The quote is describing the bride in a negative light, implying that such violent protectionism is unseemly. I'm not sure why the author would write that example, in that negative light, and then conclude that, indeed, we must reinforce such rude behaviour with policy and legislation.
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Anonymous Coward, 3 May 2011 @ 7:22pm

Re: Re: Re: Re: Re: Re: Re:
Oh, shut up FUDpacker Jr.
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guillermo jimenez, 3 May 2011 @ 9:11pm

I respectfully disagree with Masnick and support Scafidi
I am a professor at the Fashion Institute of Technology, co-author of "Fashion Law: A Guide for Designers, Fashion Executives and Attorneys" and I recently spoke at a United Nations event organized for World Intellectual Property Day -- precisely on the topic of this thread.

However, I strongly disagree with most comments here. I argue that copyright should extend to fashion designs because copyright's primary function is to protect and encourage creativty (not "science" as Masnick suggests -- which is rather the province of patent law). You can find my recent statement at: http://www.fibre2fashion.com/news/fashion-news/newsdetails.aspx?news_id=98360

You can learn more about this debate at my blog http://fashionlawcenter.com
There are good arguments on both sides. The best law review article supporting Masnick is Raustiala and Sprigman's "The Piracy Paradox" while the best article on the other side is "The Law, Culture and Economics of Fashion" by Suk and Hemphill. The latter win the argument in my opinion.

In the US we try to cover apparel design with patent law, but it is a bad fit (sorry for the pun).

Consider this: Europe has long had exactly the type of copyright protection which you are criticizing. Now ask yourself: has fashion disappeared from Europe? Go there and have a look. The Europeans will look back at you, some of them may even stare at your remarkable shoes -- and their judgments as to your fashion knowledge may indeed be as harsh as your own are of Professor Scafidi.

Now, consider the issue of frivolous litigation, which several commenters have argued would be encouraged by the new law. However the legal research clearly shows that the absence of law in the US does not prevent litigation -- actually we have far more litigation in the US already than in Europe. Lacking a logical copyright law, courts are forced into "awkward" legal contortions in which they apply trade dress, unfair competition and anti-counterfeiting law to stop the worst excesses of copying(Forever 21, for example, has been sued over 50 times, and threatened with suit literally hundreds of times -- flagrant scofflaws existing within the perimeter of our lax laws).

You unfairly criticize Professor Scafidi for attempting to popularize a legal argument with everyday examples. Her legal reasoning is impeccable and you do not address it: fashion designs can obviously be creative (easily as creative as vessel hulls or silicon chip designs -- already protected under US law).

Clearly, not all designs would qualify for copyright protection, because most apparel is based on elements which are in the public domain.

I would be pleased to continue this debate on my blog if you wish.

Guillermo C. Jimenez
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Anonymous Coward, 3 May 2011 @ 10:19pm

Re: Re: Re: Re: Re:
I suspect FudBuster might be the Anti-Mike.
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Anonymous Coward, 3 May 2011 @ 10:20pm

Re: Re: Next step...
Well, it depends, is DNA a work of art or is it a design.
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Anonymous Coward, 3 May 2011 @ 10:37pm

Perhaps Scafadi would be sated by the simple requirement that every dress have a unique design. Sure, the price of clothing would skyrocket, but who cares how available the end product is so long as nobody is copying?
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Mike Masnick (profile), 4 May 2011 @ 12:29am

Re: I respectfully disagree with Masnick and support Scafidi
However, I strongly disagree with most comments here. I argue that copyright should extend to fashion designs because copyright's primary function is to protect and encourage creativty (not "science" as Masnick suggests -- which is rather the province of patent law).

I'm afraid you are incorrect. If you look at the history of copyright law it was to encourage science. Patents was for "useful arts." Yes, the language has changed quite a bit, but when the copyright clause was written copyright was only for "science."

It troubles me that a professor in this subject is unfamiliar with this.

There are good arguments on both sides. The best law review article supporting Masnick is Raustiala and Sprigman's "The Piracy Paradox" while the best article on the other side is "The Law, Culture and Economics of Fashion" by Suk and Hemphill. The latter win the argument in my opinion.

Raustiala and Sprigman's analysis is excellent, and well backed up. I dismantled Suk & Hemphill's truly problematic piece last year: http://www.techdirt.com/articles/20100309/0205138477.shtml

It's hard to take it seriously when it gets basic economics so badly wrong. That piece assumes that any competition is bad. That's just economically laughable. To say their argument is stronger is hard to support.

In the US we try to cover apparel design with patent law, but it is a bad fit (sorry for the pun).

You assume design needs protection. It does not.

Consider this: Europe has long had exactly the type of copyright protection which you are criticizing. Now ask yourself: has fashion disappeared from Europe? Go there and have a look. The Europeans will look back at you, some of them may even stare at your remarkable shoes -- and their judgments as to your fashion knowledge may indeed be as harsh as your own are of Professor Scafidi.

No one said that fashion disappears. Why set up such a strawman? Separately, the copyright on fashion in Europe actually is very narrow (much more narrow than what you guys are pushing for) and rarely enforced. And, when it is enforced, there is growing evidence that it has harmed the fashion industry.

Now, consider the issue of frivolous litigation, which several commenters have argued would be encouraged by the new law. However the legal research clearly shows that the absence of law in the US does not prevent litigation -- actually we have far more litigation in the US already than in Europe. Lacking a logical copyright law, courts are forced into "awkward" legal contortions in which they apply trade dress, unfair competition and anti-counterfeiting law to stop the worst excesses of copying(Forever 21, for example, has been sued over 50 times, and threatened with suit literally hundreds of times -- flagrant scofflaws existing within the perimeter of our lax laws).

*sigh* You are setting up a false dichotomy, and again assuming that the presence of lawsuits means that there's a problem. Those lawsuits get settled or thrown out fast enough.

As for Fashion 21, why do you so hate competition?

You unfairly criticize Professor Scafidi for attempting to popularize a legal argument with everyday examples.

No, I fairly criticize her for popularizing her argument by misleading the public with stories that have no bearing on copyright policy.

Her legal reasoning is impeccable and you do not address it: fashion designs can obviously be creative (easily as creative as vessel hulls or silicon chip designs -- already protected under US law).

Fashion designs are creative. Without copyright law. And the fashion industry is incredibly innovative and competitive. Without copyright law. And as any economist will tell you, putting monopolies where none are needed is BAD for the economy.

I would be pleased to continue this debate on my blog if you wish.

You came here. If you want to debate, debate here.

What troubles me about this is that both you and Scafidi seem to argue from a position that discounts the economics, without realizing that this is entirely an economic debate. That troubles me greatly. If you don't understand the economic impact of what you are supporting, that's how you harm the economy. I want to keep the fashion industry vibrant. Your suggestions harm competition, limit opportunities for new designers and lead to a less innovative market. It's bad news.
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Man Behind A Mask, 4 May 2011 @ 2:15am

Johanna Blakley agrees with Mike.

http://www.ted.com/talks/johanna_blakley_lessons_from_fashion_s_free_culture.html
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Anonymous Coward, 4 May 2011 @ 8:29am

Re: Re: I respectfully disagree with Masnick and support Scafidi
He associated "science" with patents, something that is not at all unusual since very few, even in academia, realize that the terms has a different meeting in the 18th century. Yes, a mistake, but not a fatal one.

As for Fashion 21, it is actually Forever 21, also a mistake that does nothing to take away from the argument you present.

The reason Fashion 21 is viewed by many within the industry as a pariah is that no sooner is even a modestly priced garment shown to the market, that company has already sent the garment to its factories in the Orient, and within hours patterns are made and manufacturing has begun. Within just a few days finished copycat products are already on their way back to the US, and will almost immediately be placed on racks for sale in direct competition with the original creator, and at prices reflecting the fact it has incurred no sunk costs that burden the pricing of the original creator.
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Anonymous Coward, 4 May 2011 @ 10:03am

Re: Re: Re: I respectfully disagree with Masnick and support Scafidi
Not direct competition at all.

You're presuming that everyone can afford the prices asked by the originators of a designed garment, that if Forever 21 and retailers like it were wiped off the face of the planet that suddenly everyone would purchase products from the originator no matter the price asked.

Not gonna happen.
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Mike Masnick (profile), 4 May 2011 @ 11:43am

Re: Re: Re: I respectfully disagree with Masnick and support Scafidi
He associated "science" with patents, something that is not at all unusual since very few, even in academia, realize that the terms has a different meeting in the 18th century. Yes, a mistake, but not a fatal one.

Not a fatal one, but indicative of his knowledge of copyright law and its purpose. Which is why I found it striking.

The reason Fashion 21 is viewed by many within the industry as a pariah is that no sooner is even a modestly priced garment shown to the market, that company has already sent the garment to its factories in the Orient, and within hours patterns are made and manufacturing has begun. Within just a few days finished copycat products are already on their way back to the US, and will almost immediately be placed on racks for sale in direct competition with the original creator, and at prices reflecting the fact it has incurred no sunk costs that burden the pricing of the original creator.

Yes, it's called competition and most people who understand capitalism think it's a good thing. The idea that it harms the original producers is simply unproven and the evidence suggests otherwise. The success of Forever 21 has been that it actually INCREASES the value of the brand name versions, since people aspire to be able to afford the "real" versions. The people shopping at Forever 21 aren't being "fooled" and the designers aren't being harmed.
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Stitches, 4 May 2011 @ 12:05pm

"The maids learned to sew and out went the hooped skirt."

IMATATION (and reaction to it) IS THE MOST IMPORTANT MOTOR OF ALL FASHION.
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Stitches, 4 May 2011 @ 12:15pm

as a artist & designer with a sense of humor
I always win a grin from my creative brethren when I tell them it is only "stealing" when someone does it to me -- when I do it, it is called a "reference."
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guillermo jimenez, 4 May 2011 @ 12:19pm

Let the debate begin!!!
Thank you for your vigorous reply. I can see that you and your interlocutors will not forgive imprecise expression, so I appreciate the chance for a challenging and productive discussion. As is usually the case with blog debates, we have so far failed to convince each other. But then, that's not the point, is it? But maybe that's another debate...let me return to this one.

I said: However, I strongly disagree with most comments here. I argue that copyright should extend to fashion designs because copyright's primary function is to protect and encourage creativty (not "science" as Masnick suggests -- which is rather the province of patent law).

You wrote: I'm afraid you are incorrect. If you look at the history of copyright law it was to encourage science. Patents was for "useful arts." Yes, the language has changed quite a bit, but when the copyright clause was written copyright was only for "science."

I disagree: No, you are confusing U.S. copyright law with copyright law. The "arts and sciences" phrasing of the founders is predated by centuries of copyright in England. Moreover, the development of U.S. law clearly has bifurcated with the protection of scientific discoveries under patent law and the protection of creative works under copyright law.

You say: It troubles me that a professor in this subject is unfamiliar with this.

I say: I was not unfamiliar, I was just expressing myself more clearly than you. But it is interesting that you feel such a need to cast aspersions on professors and lawyers. Have you had any bad encounters with these professions?

I said: There are good arguments on both sides. The best law review article supporting Masnick is Raustiala and Sprigman's "The Piracy Paradox" while the best article on the other side is "The Law, Culture and Economics of Fashion" by Suk and Hemphill. The latter win the argument in my opinion.

You say: Raustiala and Sprigman's analysis is excellent, and well backed up. I dismantled Suk & Hemphill's truly problematic piece last year: http://www.techdirt.com/articles/20100309/0205138477.shtml

It's hard to take it seriously when it gets basic economics so badly wrong. That piece assumes that any competition is bad. That's just economically laughable. To say their argument is stronger is hard to support.

I say: You just state conclusions and never cite data. I have noticed this in your other articles as well. Where is Raustiala and Sprigman's "well-backed" data? Could you give me a page reference at least? My impression was that Raustiala and Sprigman did NOT back their argument with economic data. Why, for example, have they not given us comparative ROI data for the American apparel sector compared with European countries? Why have you not provided links to such data?

In the US we try to cover apparel design with patent law, but it is a bad fit (sorry for the pun).

You say: You assume design needs protection. It does not.

I say: I never said that. I clearly said the opposite. Allow me to repeat: I said most fashion would never be covered even by the new copyright legislation.

I said: Consider this: Europe has long had exactly the type of copyright protection which you are criticizing. Now ask yourself: has fashion disappeared from Europe? Go there and have a look. The Europeans will look back at you, some of them may even stare at your remarkable shoes -- and their judgments as to your fashion knowledge may indeed be as harsh as your own are of Professor Scafidi.

You say: No one said that fashion disappears. Why set up such a strawman? Separately, the copyright on fashion in Europe actually is very narrow (much more narrow than what you guys are pushing for) and rarely enforced. And, when it is enforced, there is growing evidence that it has harmed the fashion industry.

I say: When I said that fashion "hasn't disappeared" from Europe I thought it was obvious that I was employing a rhetorical device to suggest that fashion was vibrant in Europe. There was obviously no argument that fashion is likely to disappear from the US due to design piracy. So, regretfully, I am afraid I will have to resort to one of your own somewhat snide phrases. You say that you are disappointed that a professor or attorney does not know all of the things that you know, and you claim to be "disturbed" by my ignorance. Yet you claim to be a writer of some sort, and yet you misunderstand even the simplest rhetorical phrases. Could we dispense with that kind of chippiness? We'll be much more productive if we focus on the reasoning and a little bit less on your need to reinforce your ego.

I said: Now, consider the issue of frivolous litigation, which several commenters have argued would be encouraged by the new law. However the legal research clearly shows that the absence of law in the US does not prevent litigation -- actually we have far more litigation in the US already than in Europe. Lacking a logical copyright law, courts are forced into "awkward" legal contortions in which they apply trade dress, unfair competition and anti-counterfeiting law to stop the worst excesses of copying(Forever 21, for example, has been sued over 50 times, and threatened with suit literally hundreds of times -- flagrant scofflaws existing within the perimeter of our lax laws).

You say: *sigh* You are setting up a false dichotomy, and again assuming that the presence of lawsuits means that there's a problem. Those lawsuits get settled or thrown out fast enough.

I say: *sigh* Don't you get it -- the frivolous litigation argument is ON YOUR SIDE, not mine? I am not "assuming that the presence of lawsuits means that there's a problem" -- I am saying EXACTLY THE OPPOSITE. This is a crucial point -- Raustiala and company are complaining about the potential for increased frivolous litigation, but here you say it's not a problem. Are you sure you know which side you're on? Or do you agree in part with Raustiala, and disagree in part?

You say: As for Fashion 21, why do you so hate competition?

I say: Somebody got snide about the fact that you got the name wrong and that it should be Forever 21. I think we all understood that you meant Forever 21. But I do hope that the person who made that observation at least derives some unusual kind of personal gratification from making these sorts of irrelevant corrections.

You unfairly criticize Professor Scafidi for attempting to popularize a legal argument with everyday examples.

You say: No, I fairly criticize her for popularizing her argument by misleading the public with stories that have no bearing on copyright policy.

I say: No, you waste a lot of time by attacking her for using examples that you don't find convincing, while failing to address her basic argument.

Her legal reasoning is impeccable and you do not address it: fashion designs can obviously be creative (easily as creative as vessel hulls or silicon chip designs -- already protected under US law).

You say: Fashion designs are creative. Without copyright law. And the fashion industry is incredibly innovative and competitive. Without copyright law. And as any economist will tell you, putting monopolies where none are needed is BAD for the economy.

I say: YES!!! You got it! "Fashion designs are creative." That's exactly right! I completely agree with you! Now, how do we protect creative works in America? Waiting for your answer....

I would be pleased to continue this debate on my blog if you wish.

You say: You came here. If you want to debate, debate here.

I say: OK.

You say: What troubles me about this is that both you and Scafidi seem to argue from a position that discounts the economics, without realizing that this is entirely an economic debate. That troubles me greatly. If you don't understand the economic impact of what you are supporting, that's how you harm the economy. I want to keep the fashion industry vibrant. Your suggestions harm competition, limit opportunities for new designers and lead to a less innovative market. It's bad news

I say: Why are you always so "troubled"? Can't you disagree with people without getting troubled about it? Doesn't this lead to you spending most of your days troubled all day long? How do you handle it? Personally, I find it kind of troubling....

Moreover: I want this argument to be economic, I want you to find data suggesting that American apparel's long-term economic profitability is higher in the absence of clear copyright law. Can you not see that clear laws can actually prevent economically-damaging litigation? But I would also ask you, where does one find the most vibrant economic activity -- in countries that strongly respect intellectual property -- or in countries where piracy of all kinds is rampant?

You say: And as any economist will tell you, putting monopolies where none are needed is BAD for the economy.

I say: That is purely a tautologous statement -- the whole point is whether they are needed or not. That's like saying that surgery where none is needed is BAD -- proving thereby that surgery is always bad.

You say: You say you dismantled Suk and Hemphill, but I would say that you dismantled them rather in the same fashion that Sonny Liston dismantled the young Cassius Clay -- you didn't lay a glove on them. Where is your analysis of Suk's data showing that Forever 21 wastes more court time than H&M and Zara combined?

Finally, you say: Those lawsuits get settled or thrown out fast enough.

I say: Are you serious? Like the Wal-Mart v Samara Bros case that went to the Supreme Court?

As I said, I am quite ready to begin the debate and I am indeed looking forward to see if you have anything new or useful to add to this interesting debate. So far, in my opinion, you do not.
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Anonymous Coward, 4 May 2011 @ 3:22pm

Re: Re: Re: I respectfully disagree with Masnick and support Scafidi
I have to laugh given I noted that Fashion 21 should be Forever 21, and then immediately thereafter called the company Fashion 21.

Duh...
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guillermo jimenez, 10 May 2011 @ 3:53pm

debate?
Mr. Masnick,

I thought you wanted to debate? Supposedly Scafidi and Suk were shaking in fear of your invincible arguments? I'm still waiting for any logical refutation or any reference to data. As for "dismantling," so far, the one who was been dismantled is you. By all means, please re-mantle yourself and join the fray.

respectfully,

Guillermo Jimenez
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Mike Masnick (profile), 12 May 2011 @ 11:58pm

Re: Let the debate begin!!!
I disagree: No, you are confusing U.S. copyright law with copyright law. The "arts and sciences" phrasing of the founders is predated by centuries of copyright in England. Moreover, the development of U.S. law clearly has bifurcated with the protection of scientific discoveries under patent law and the protection of creative works under copyright law.

I'll quote:

[O]ver a time of two centuries, the meaning of even common words may change. �Science� as we use it today does not have the connotation it did in 1787 when it referred to knowledge in general, in all fields of knowledge. What we mean today by �science� was then called natural philosophy. It was quite clearly intended by the authors of the Constitution that copyright, not patents, was intended to promote science, and the province of rights granted to inventors respecting their �Discoveries� was to promote the �useful Arts.�

That's from Giles Rich who knew a thing or two about this stuff.

I say: I was not unfamiliar, I was just expressing myself more clearly than you. But it is interesting that you feel such a need to cast aspersions on professors and lawyers. Have you had any bad encounters with these professions?

Pretty funny for you to attack me for "casting aspersions" a sentence after trying (and failing, badly) to insult me. You did not express yourself "more clearly." If you expressed yourself more clearly, people wouldn't be confused. But we are confused because your statement was wrong.

I say: You just state conclusions and never cite data. I have noticed this in your other articles as well. Where is Raustiala and Sprigman's "well-backed" data? Could you give me a page reference at least? My impression was that Raustiala and Sprigman did NOT back their argument with economic data. Why, for example, have they not given us comparative ROI data for the American apparel sector compared with European countries? Why have you not provided links to such data?

My job is not to do your research for you. If you wish to hire our firm to do research, feel free. In the meantime, I'm sure you know how to use Google to find their research as well as other research that highlights why fashion copyright is unnecessary.

But, if we're to take this seriously, it's quite easy: the US fashion market is thriving. It's highly competitive, with new and innovative fashions coming out all the time. So the very purpose of copyright law shows that that no new laws are needed here. Copyright law was designed to deal with supposed market failures, yet there are none here.

I say: I never said that. I clearly said the opposite. Allow me to repeat: I said most fashion would never be covered even by the new copyright legislation.

You said that we cover design with patents, and noted that it was a bad fit, and suggested copyright (or your sui generis right) is a better fit.

But that assumes that protectionism is necessary. It is not. And you have never shown a shred of evidence that it would improve progress in the industry.

I say: When I said that fashion "hasn't disappeared" from Europe I thought it was obvious that I was employing a rhetorical device to suggest that fashion was vibrant in Europe. There was obviously no argument that fashion is likely to disappear from the US due to design piracy. So, regretfully, I am afraid I will have to resort to one of your own somewhat snide phrases. You say that you are disappointed that a professor or attorney does not know all of the things that you know, and you claim to be "disturbed" by my ignorance. Yet you claim to be a writer of some sort, and yet you misunderstand even the simplest rhetorical phrases. Could we dispense with that kind of chippiness? We'll be much more productive if we focus on the reasoning and a little bit less on your need to reinforce your ego.

I responded to your statement accurately and directly. You have chosen not to do so, but rather to insult me and claim that I make statements for my ego. Trust me, this debate has nothing to do with ego.

In the meantime, do you have an actual response?

I say: *sigh* Don't you get it -- the frivolous litigation argument is ON YOUR SIDE, not mine? I am not "assuming that the presence of lawsuits means that there's a problem" -- I am saying EXACTLY THE OPPOSITE. This is a crucial point -- Raustiala and company are complaining about the potential for increased frivolous litigation, but here you say it's not a problem. Are you sure you know which side you're on? Or do you agree in part with Raustiala, and disagree in part?

Again, you seem to have misread the argument and are changing tunes. Your original point was that "the absence of law in the US does not prevent litigation" as if that meant that we shouldn't be concerned about the issue of frivolous litigation. But I noted -- accurately, despite your statement here -- that you have set up a false dichotomy. All lawsuits are not created equally. Yes, there are some frivolous lawsuits today, but that's nothing compared to what the law would create. My statement that "assuming that the presence of lawsuits means that there's a problem. Those lawsuits get settled or thrown out fast enough." was about the lawsuits *today*. Not the frivolous lawsuits your legislation would create.

I say: Somebody got snide about the fact that you got the name wrong and that it should be Forever 21. I think we all understood that you meant Forever 21. But I do hope that the person who made that observation at least derives some unusual kind of personal gratification from making these sorts of irrelevant corrections.

And, once again, you don't answer the question. Let's try again. What do you have against competition?

I say: No, you waste a lot of time by attacking her for using examples that you don't find convincing, while failing to address her basic argument.

Her legal reasoning is impeccable and you do not address it: fashion designs can obviously be creative (easily as creative as vessel hulls or silicon chip designs -- already protected under US law).

I have addressed her legal reasoning time and time again, and it is not "impeccable" at all. The thing is, we're dealing with an *ECONOMIC* sui generis right here, which is designed to deal with an ECONOMIC situation... and you and Scafidi don't understand the economics!

You say: You say you dismantled Suk and Hemphill, but I would say that you dismantled them rather in the same fashion that Sonny Liston dismantled the young Cassius Clay -- you didn't lay a glove on them. Where is your analysis of Suk's data showing that Forever 21 wastes more court time than H&M and Zara combined?

So you don't respond to a single point I made against their piece, but just insist I didn't touch them. Hilarious. Anyone is free to read the link and decide for themselves. I went through their paper and dismantled the arguments that were economically clueless.

As for Forever 21 being involved in court battles, see my comment above concerning lawsuits.

I say: Are you serious? Like the Wal-Mart v Samara Bros case that went to the Supreme Court?

Heh. So, one single case proves a rule? I mean, come on...

As I said, I am quite ready to begin the debate and I am indeed looking forward to see if you have anything new or useful to add to this interesting debate. So far, in my opinion, you do not

If you're quite ready to begin a debate, you would have responded to the actual questions. You did not. This is no debate. This is a joke.
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guillermo jimenez, 14 Jun 2011 @ 1:13pm

Finally, the debate! OK, Round 1 -- go for it!
Excellent, you came back! I didn�t realize you�d take over a week to respond, but I�m fine with that, I�m busy, too.

I must apologize for the ad hominem remarks, I was disappointed that you seemed unwilling to debate. Though such manners do seem to be part of the ethos of your blog, I at least should know better, and will try to stick to the argument at hand.

Now, I should say, I have huge respect for economics and am a big fan. If you download a copy of my book on politics, Red Genes Blue Genes (free at my website redgenesbluegenes.com), you will see that I am a particular fan of rational choice and public choice thinkers, and of their policy critiques.

When I lived in Europe I developed a long-lasting collaboration with Prof Dominique Foray, one of the world's leading experts in the economics of technological innovation. He introduced me to Prof Paul David, who had a joint appointment to Stanford and Oxford, and was short-listed for the Nobel in economics (or at least, what they call the economics Nobel). So I've had lots of experience dealing with real economists at a pretty high level. I used to go to meetings at the OECD in Paris all the time, and I met many people there who were at least as well versed as economics as you. Currently, my favorite economists are Tyler Cowen and Bryan Caplan, though I am also a big fan of Paul Krugman. But I must admit, though I have participated in serious economic discussions with real economists before, I am a little unfamiliar with your fast and loose bloggy economics, but I will try to do the best I can to communicate on your level.

So, now the way real debates are carried out is that there is a stated position that we take sides on. Then we take turns stating the elements of our argument, and take turns rebutting and defending those arguments.

So let me suggest that the debate motion is as follows:

Resolved -- that the USA should follow European practice and adopt copyright-based anti-piracy legislation for the fashion sector. You want to fine-tune that, go ahead, but I think that�s the essence of it.

So I am in favor of the motion. If you permit, I will begin here by outlining my argument:

1. To do so would render the market impact of copyright law more consistent, since copyright has the practical effect of protecting creative works in tangible form.
A. Fashion design can be analogized to architectural design � protected since 1976 � or even to choreography, silicon chip design, and software programs. All are to some extent creative works, so why should they be treated differently? I argue that there is no good reason why they shouldn�t. Do you have any reason for distinguishing innovative fashion designs from other creative works?

2. To do so would not damage the US market.
A. At least, there is no evidence that it would do so. Raustiala and Sprigman make that argument, but with no data to support it. However, such data should eventually become available.
B. European fashion sectors are vibrant. If they have not been hurt by copyright protection, why do you assume that the US would be hurt?
C. Some people claim that this would lead to frivolous litigation, but there is no evidence that this has been the case in Europe, even in their more litigious states, like the UK.

3. Opponents argue that the US market is fine the way that it is, but they�re wrong:
A. The American apparel and textile manufacturing industries have been utterly decimated over the past 20 years. You simply cannot say they are doing fine.
B. American fashion retail has been struggling with overcapacity for over a decade � which incidentally, should give us pause as regards market-based libertarian solutions to economic problems. That is why there has been so much bankruptcy and consolidation in the industry.
C. American luxury apparel and accessories were also devastated by the 2008 recession and have been struggling even more than other American industries.
D. Young designers like Jason Wu constantly find that companies like ABS and Promgirl are knocking them off overnight after the Oscars and other public events like the Inauguration. Those young designers are definitely damaged because if the ABS�s of the world were forced to license those designs, the cost to consumers would rise only marginally, but creativity would be getting its due. As it stands, we have essentially legalized robbery in the fashion sector � though we have outlawed it in greeting cards, TV commercials, print ads, hip hop beats, parapets and balconies, and vessel hulls.
E. Opponents never bring forth any ROI data � or any economic data whatsoever � to prove their points. But we see no evidence of an ROI problem in the European fashion sector. At the very least, opponents should stop claiming the mantle of economics unless they can produce economic data, otherwise they�re merely conjecturing and have achieved no edge over their interlocutors.

Conclusion: The current state of affairs renders our copyright law inconsistent, at variance with European practice -- which makes us look like a pirate nation (while we shake our finger at China), puts our companies at a disadvantage when it comes to competing in Europe (H&M and Zara are doing fine in the US but Forever 21 cannot open a store in Europe), forces our young designers into all kinds of contortions to try to hide their new designs until they are ready to market them (the opposite of what we usually try to accomplish with copyright), and teaches our young people in the fashion sector that stealing is all right (and many of them don�t realize there are limits to stealing, so they get into lawsuits because they copy copyrighted fabric prints, jewelry or accessories). Consequently, the US fashion sector would be much better off with this protection, companies like Forever 21 would be forced to license instead of steal � which they are perfectly capable of doing, and young fashion designers would know that their profession is just as respected in America, creatively speaking, as silicon chip engraving or vessel hull design.
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