Would Fashion Copyright Have Made Kate Middleton's Knockoff Wedding Dress Illegal?

from the oops dept

Tue, Jul 26th 2011 6:17am — Mike Masnick

Right after the big royal wedding a few months back, Susan Scafidi, the law professor who is one of the leading supporters of putting in place a totally unnecessary and economically damaging "fashion copyright," used the wedding to support her arguments for fashion copyright. She suggested how unfortunate it would be that Kate Middleton's wedding dress would now be knocked off and used by other brides. It seems the "Kate Middleton's dress" example is popular among supporters of fashion copyright. In the NY Times, Steven Kolb, director of the Council for Fashion Designers of America (the main organization pushing for this bill), described Kate Middleton's wedding dress as the perfect example of what fashion copyright could protect:

Mr. Kolb said that Kate Middleton�s wedding dress would probably be a good example

Interesting. Except... as Johanna Blakley points out, it turns out that Kate Middleton's dress... was a knockoff itself!

See the dress on the right? That's Kate Middleton in her dress. On the left? That's Isabella Orsini, goddaughter of the Italian Prime Minister, marrying Belgian Prince Edouardo de Ligne... two years ago. The dresses were made by different designers. Orsini's by Gerald Watelet, Middleton's by Sarah Burton. As Blakley notes:

We�d all like to think that we can recognize newness and originality when we see it, but it�s actually quite hard to do. Even Steven Kolb, who is completely immersed in the fashion world, had trouble choosing a good example of a dress that is different from all designs that have preceded it.

And, of course, there's really nothing new under the sun in many of these cases. For example, some people have pointed out that both dresses appear quite similar to the dress worn at another famous royal wedding... over fifty years ago. See the photo below of Grace Kelly marrying the Prince of Monaco:

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: fashion copyright, kate middleton, knockoffs, wedding dress

54 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

The eejit (profile), 26 Jul 2011 @ 5:45am

The basis for new culture is, in fact, knockoff dresses.
[ link to this | view in thread ]
Anonymous Coward, 26 Jul 2011 @ 6:29am

Even an untalented eye can see significant differences in the two dresses, from the type of material (left is a cream "smooth" material, right is a more form fitting, stretch style white), to the cut, to the difference between a smooth dress and a pleated.

It is very similar to http://www.techdirt.com/articles/20110718/02490115124/is-there-difference-between-inspiration-copyin g.shtml - vague similarities are not the point of any rights protection system, even if some think it might be.

Perhaps Mike you can be a little more consistant. If you are going to mock the photographer, why not mock the guy who claims these two dresses are the same? Oh, wait, I know, because you are trying to make an anti-copyright point here. Got it.
[ link to this | view in thread ]
Jay (profile), 26 Jul 2011 @ 6:37am

Re:
And if you look at the pictures just right, they're all wearing the same earrings.
[ link to this | view in thread ]
Anonymous Coward, 26 Jul 2011 @ 6:41am

Re: Re:
And if you play them backwards, you can hear messages from Satan.
[ link to this | view in thread ]
Cowardly Anon, 26 Jul 2011 @ 6:42am

"She suggested how unfortunate it would be that Kate Middleton's wedding dress would now be knocked off and used by other brides."

Perhaps I'm missing something, but how would that be unfortunate? The value and prestige of the dress had nothing to do with the designer or even the design, and everything to do with who wore it.

She is an idol and someone people wish to be closer to. If a woman wanted to wear a similar dress to the one that Kate wore, how would that harm anyone?

It wouldn't harm the designer, as I'm betting it wouldn't harm the original designer. He was probably paid handsomely for that dress, not to mention all the press coverage and free advertisement he got from being the dress designer for the royal wedding.

It wouldn't harm Kate, as her day is done. Why should it matter if women around the world fell in love with her dress and wanted to feel even more like a princess on their wedding day by wearing a dress similar to the one she wore?

It wouldn't harm consumers, as they KNOW they aren't getting Kate's wedding dress. And as wedding dresses are already inflated in value, I don't see how buying a dress that looks like the one form the royal wedding would drive the price up too much higher, or if the women would even care if it was.

It wouldn't harm the fashion industry, because as long as people are willing to buy the industry will keep going forward. In fact, if women do want a knock off Kate dress, then it could help the industry by creating revenue streams for new designers.

So, I guess it boils down to Susan Scafidi using sentiment for a moment that the world shared as a shameless plug to push her own agenda.

To Susan Scafidi, I have one thing to say: Facts or GTFO.
[ link to this | view in thread ]
Donnicton, 26 Jul 2011 @ 6:43am

Re: Re:
If you unfocus your eyes just right, you can also see a sailboat.
[ link to this | view in thread ]
Binary Adder (profile), 26 Jul 2011 @ 6:43am

Re:
Well, does it mean that if I print a book on different kind of paper, different font and colour, is it enough to not to infringe on the original? Who will decide where is the boundary?
[ link to this | view in thread ]
Dragos (profile), 26 Jul 2011 @ 6:44am

Fashion copyright is not enough!
I would suggest something similar to the 'public performance tax', so we should pay something to the designers every time we wear their creations in public.
[ link to this | view in thread ]
chaitanya k, 26 Jul 2011 @ 6:46am

time-traveller?
actually those are all the same woman! she's an immortal who likes to appear in public every so often and get married in the same dress.

sometimes she dies her hair.

she maybe a vampire or highlander.
[ link to this | view in thread ]
Prisoner 201, 26 Jul 2011 @ 6:51am

Re: Re:
Whoever has the most lawyers and bought politicians of course! It's a perfect, self regulating system. Dont mess with it.

Seriously.

Or else.
[ link to this | view in thread ]
out_of_the_blue, 26 Jul 2011 @ 6:51am

Gosh, Mike, another VITAL FASHION QUESTION!
You really MUST change your "About" page. It's so STALE and FRUMPY, doesn't even hint at the EXCITING WORLD OF FASHION:
"the Techdirt blog uses a proven economic framework to analyze and offer insight into news stories about changes in government policy, technology and legal issues that affect companies ability to innovate and grow"
[ link to this | view in thread ]
Anonymous Coward, 26 Jul 2011 @ 6:53am

Re: Re:
No, you have it backwards. What is being suggested is that if two different books are printed to be the same size, with the same color on the cover, and having the same number of pages (but are completely different in content), would that be violating copyright?

The two dresses have some common features, in very general terms, but even an untrained eye can clearly see major differences. Further, the Grace Kelly dress is nothing like it at all, except perhaps for the use of lace for sleeves. Even then, it's a reach.

The two dresses are two blues songs. They are similar in nature and general tone, but one is singing about losing his lady and the other one is singing about losing his job. You can find similarities if you work hard (similar to Mike's other post), but the differences are very clear as well.

Too bad Mike can't seem to decide which side of the debate he wants to be on.
[ link to this | view in thread ]
Anonymous Coward, 26 Jul 2011 @ 6:57am

Re:
Talk about missing the forest for the trees.

The point is that someone thought they were similar. The validity of the claims of similarity is completely irrelevant because, if there were a fashion copyright, the validity would be irrelevant. If someone says they're similar and that someone is the copyright holder you give in to whatever they demand or you go to court regardless of the validity. That is the point being illustrated here.
[ link to this | view in thread ]
Jay (profile), 26 Jul 2011 @ 6:58am

Re: Re: Re:
Nah, that's a horse. WITH DIAMONDS!
[ link to this | view in thread ]
Chuck Norris' Enemy (deceased) (profile), 26 Jul 2011 @ 7:06am

Re: Gosh, Mike, another VITAL FASHION QUESTION!
"legal issues that affect companies ability to innovate and grow"

I think this post falls in that category. You are so desperate to troll...it is sad, really.
[ link to this | view in thread ]
Mark, 26 Jul 2011 @ 7:07am

Re: Re: Re:
Nah, it's a schooner.
[ link to this | view in thread ]
Anonymous Coward, 26 Jul 2011 @ 7:09am

Re: Gosh, Mike, another VITAL FASHION QUESTION!
Fail in reading comprehension. "Legal issues that affect companies ability to innovate and grow": yes, that's what this article is about. Mike is arguing that a fashion copyright would affect innovation and growth.
If you think Mike has gone off the deep end and is somehow not allowed talk about these kinds of things, then STFU, GTFO, and start your own damned blog.
[ link to this | view in thread ]
Anonymous Coward, 26 Jul 2011 @ 7:10am

Fashion Trolls
I would love nothing more for this organization to get this expansion of copyright. It's not going to stop the knockoffs of course, any more than the RIAA or MPAA is able to stop infringement of their stuff. What it will start though, is Fashion Trolls. People (well lawyers) will buy up old designs (or just pay college students to make them) and then start suing all the major companies for anything that remotely looks like a design they own. It's not like you have to actually sell anything, just produce one and you've got the copyright. Soon everyone will have to wear the same plain clothes to prevent themselves from infringing. It'll be just like Star Trek.
[ link to this | view in thread ]
Anonymous Coward, 26 Jul 2011 @ 7:10am

Re: Re: Re:
First thing I thought of when I saw Middleton's dress was Grace Kelly's (thanks for providing the pic, Mike).

If fashion copyright had existed as regular copyright does today, neither Middleton nor Orsini (nor countless other brides, c'mon, this is not exactly a bold new design here), would have any choice about their dresses: the design would be locked up in damn near perpetual copyright and any attendant lawsuits whether they were "infringing" or not.

Copyright, as it stands and is abused today, will not help designers at all, it will tie their hands and squash their expression with totally unnecessary litigation. It baffles me why such a vibrant and creative industry would want to impose those shackles upon itself.
[ link to this | view in thread ]
Alien Bard, 26 Jul 2011 @ 7:11am

Re: Re: Re:
Copyright isn't about the differences, it's about the similarities. Under current trends all it takes to create a case are two or more similarities. The differences are immaterial.
[ link to this | view in thread ]
Chris Rhodes (profile), 26 Jul 2011 @ 7:13am

Re: Re: Re:
And people like you are the first to scream "DERIVATIVE WORK!" whenever someone creates something even remotely like anything else.

You're not fooling anyone.
[ link to this | view in thread ]
Anonymous Coward, 26 Jul 2011 @ 7:13am

Re: Fashion Trolls
Shiny silver suits and boots for everyone!
[ link to this | view in thread ]
Andrew (profile), 26 Jul 2011 @ 7:23am

Re: Fashion copyright is not enough!
I like it! And while we're here, why not start licensing clothes instead of selling them? Then the manufacturer could prevent you from wearing last season's clothes ever again, or maybe charge you 20% more if you had the gall to wear that smart business skirt on a night out.

Instituting region restrictions could also be a lot of fun and, if governments got involved in enforcing these things, that trip through security could leave you naked not just for the trip through the body scanners, but for the whole flight. I can hardly wait.
[ link to this | view in thread ]
Jay (profile), 26 Jul 2011 @ 7:23am

Re: Gosh, Mike, another VITAL FASHION QUESTION!
Coming up next thread, out of the blue forgets that copyright is not needed in the fashion industry
[ link to this | view in thread ]
NotMyRealName (profile), 26 Jul 2011 @ 7:32am

Re: Fashion Trolls
Nope, I'm copyrighting t-shirts and jeans - prior art be damned. Maybe I can wring some lucrative settlements out of the big players before before they realize what happened in the glut of coming lawsuits.
And just to show my heart is in the right place, I'll start buying t.v. seasons and movies again once I'm absurdly rich ;)
[ link to this | view in thread ]
Gabriel Tane (profile), 26 Jul 2011 @ 7:32am

Re: Re: Re: Re:
WHEN DO I GET TO SEE THE SAIL-BOAT!?!?!?
[ link to this | view in thread ]
fogbugzd (profile), 26 Jul 2011 @ 7:45am

Re: Re:
>>Who will decide where is the boundary?

And this is exactly the problem. Where is the boundary? Does Isabella's designer get to claim all dresses with a split in the bodice? What if the split in Kate's dress is 9cm long, and Isabella's is only 8? If the original dress used thin silk, is it the same design if the new dress uses lace or sheer cotton? How far off from pure white does the the dress need to be? What if Isabella's designer claimed copyright, and someone discovered an even older dress that was very similar?

IP holders almost always try to claim the broadest possible rights. Proponents of the fashion copyright law claim that the proposed law is specific, but if you try to apply the currently proposed law to this situation (assuming copyright law had covered Isabella's dress) then it is clear that the law still leaves a lot of room for interpretation. The only possible outcome is a lot of lawsuits with judges and juries trying to decide whether one neckline is too similar to another. No one wins except the lawyers.
[ link to this | view in thread ]
The eejit (profile), 26 Jul 2011 @ 7:54am

Re: Re: Re: Re: Re:
About the time the credits roll.
[ link to this | view in thread ]
HothMonster, 26 Jul 2011 @ 8:00am

Re:
Is that all it takes to get around this fashion copyright? Who wants to go into business with me remaking famous wedding dresses?

We can make all the ones that are originally cream into a whiter shade and the white ones cream. Also we will move the neckline down or up 1 inch.

Thank god these fashion copyright laws are so open.
[ link to this | view in thread ]
HothMonster, 26 Jul 2011 @ 8:06am

Re: Re: Fashion Trolls
sorry too late:

patent 6002-607
for "pants made primarily of denim"

^ look at me innovate
[ link to this | view in thread ]
Anonymous Coward, 26 Jul 2011 @ 8:14am

Re: Re: Fashion copyright is not enough!
Don't forget hand-me-downs - a child outgrows an outfit and their parents want a younger sibling to wear it? Sorry, that's not allowed, unless they paid the 45% site license fee when they bought it.
[ link to this | view in thread ]
Anonymous Coward, 26 Jul 2011 @ 8:15am

Re: Re: Re: Re: Re:
What you need is a fatty-boom-batty blunt! And I guarantee you'll be seeing a sailboat, an ocean, and maybe even some of those big-tittied mermaids doing some of that lesbian shit!
[ link to this | view in thread ]
Anonymous Coward, 26 Jul 2011 @ 8:19am

Re: Re:
What all of you miss is even if you turn fashion copyright on tomorrow morning, all of this stuff is already in the public domain. The problem resolves itself nicely, all without having to trash the rest of the copyright system to avoid it.
[ link to this | view in thread ]
Anonymous Coward, 26 Jul 2011 @ 8:22am

Re: Re: Gosh, Mike, another VITAL FASHION QUESTION!
No fail at all. What Mike doesn't happen to mention is that everything that has been made before whatever point they would activate copyright on clothes would be the public domain, and pretty much everything has already been done, from stitching types to design features.

A company would have to be highly innovative to come up with something that is entirely new. If it is a process (say a way to stitch invisibly backwards with a twist) it wouldn't be copyright but rather an issue for patent. So we are only talking appearance here, and most of the appearance has already happened in other ways.

Basically, Mike is creating the old "tempest in a teapot" thing, and ignoring the reality of a huge, huge, huge public domain in clothes design that would pretty much make it impossible for anyone not to hit prior art. But that wouldn't be a very good story for Techdirt, would it?
[ link to this | view in thread ]
HothMonster, 26 Jul 2011 @ 8:57am

Re: Re: Re:
Public domain? isnt that the thing disney owns?
[ link to this | view in thread ]
HothMonster, 26 Jul 2011 @ 9:01am

Re: Re: Re: Gosh, Mike, another VITAL FASHION QUESTION!
so if its impossible for almost anything to fall under this fashion copyright and the few things that do will be better covered by patent, why do we need it? They are saying its to copyright things like Kate's dress but if there is so much prior art that it would be un-copyrightable why the fuck are we making the law?

Oh because big name designers can sue the shit out of anyone who comes up with anything remotely similar that is more popular, because despite prior art if you don't have a few thousand grand laying around to defend yourself in court than it doesn't fucking matter you lose.
[ link to this | view in thread ]
Bruce Ediger (profile), 26 Jul 2011 @ 9:32am

Re: Re: Re: Fashion Trolls
Even better, a more basic feature: fabric pouches attached to clothing through slits to provide access to stored items.

Don't bother, "Intellectual Ventures" is already working on this one.
[ link to this | view in thread ]
Anonymous Coward, 26 Jul 2011 @ 9:34am

Re: Re: Re: Re: Gosh, Mike, another VITAL FASHION QUESTION!
I am sure that some future would could fall under a fashion copyright, but they would have to be truly new and innovative, not just a duplcation of a past style or a merging of two past works.

They could likely very narrowly copyright Kate's dress, but a similar dress with even a slightly lower neckline might not be the same dress. The copyright would likely apply only to exact duplication.

"Remotely similar" wouldn't work, because all the remotely similar stuff has already been done. Prior art and all that, they can easily say they are copying this "public domain dress" without issue.

I don't even think that much of it would get near a court, because of how few new designs are actually truly new and not a riff off a past design.
[ link to this | view in thread ]
nasch (profile), 26 Jul 2011 @ 9:47am

Re: Re: Fashion copyright is not enough!
Ew, clothing DRM.
[ link to this | view in thread ]
nasch (profile), 26 Jul 2011 @ 9:50am

Re: Re: Re: Re: Re: Gosh, Mike, another VITAL FASHION QUESTION!
They could likely very narrowly copyright Kate's dress, but a similar dress with even a slightly lower neckline might not be the same dress. The copyright would likely apply only to exact duplication.

You're still missing it. You can sit there and write that, but if it was you getting sued, you would have to prove your case in court. That's extremely expensive, even if you're right.

I don't even think that much of it would get near a court

Then you haven't been paying attention to copyright issues, or you're stupid, or you're lying. Introduce copyright, and these issues will go to court.
[ link to this | view in thread ]
el_porko (profile), 26 Jul 2011 @ 10:10am

Kate Middleton's dress is almost an exact copy of my wife's wedding dress.

I'm going to have to sue Google for that!

Actually I thought it was a reasonbly common style, and ther are millions and millions of wedding dresses out there, how could you not design a dress that is similar to others?

P.S. I've trademarked the colour "white" and the words "wedding dress" so you owe me some money Mike!
[ link to this | view in thread ]
Scott (profile), 26 Jul 2011 @ 10:18am

If only every bride could look like Grace Kelly. She was truly the most beautiful bride. Stunning in every way
[ link to this | view in thread ]
Mel (profile), 26 Jul 2011 @ 10:40am

Re: Re: Re:
So Apple's lawsuit with Samsung is a reach since their content is different. We'll see how important the courts think having a similar appearance (both do have rounded corners).
[ link to this | view in thread ]
Anonymous Coward, 26 Jul 2011 @ 10:48am

Re: Re: Re: Re:
Again, you fail here for a couple of reason:

1st, the Kelly dress and the other two are not particularly similar at all, except for the use of lace sleeves. The Kelly dress most significantly features horizontal cloth orientation over the stomach area, which is very different from the other two. Also, the other two are using the lace sleevs and shoulders are support to create a plunging neckline, where the Kelly dress is for all intents a strapless dress with lace decorations. There are some similarities, in the same manner that there are similarities between blues songs. But they aren't the same song.

2nd, you assume that the copyright holder would have no interest in licensing out their designs. One of the keys of copyright (and patent for that matter) is that the only time it turns into money is if you use it or license it. Just holding it up isn't really in anyone's interest.

Basically, the Kelly dress would not be a copyright that the other dresses would violate, and in extremist, there is no reason why they wouldn't license the design anyway.

So sorry, nothing would be "locked up", except perhaps your Techdirt muddled view of copyright.
[ link to this | view in thread ]
Michael (profile), 26 Jul 2011 @ 1:31pm

AnonFail
No, you fail. All wedding dresses look the same.
[ link to this | view in thread ]
Mel (profile), 26 Jul 2011 @ 3:00pm

did you say similar...
Are not all things and ideals similar or progressions from those that came before. Is there really any totally and completely original thought or ideals? I don't think so, don't they all build off of previous ideals that themselves were evolved from those previous to them?

So nothing is truly original, these claimants were just the first to claim, patent or copyright it. Which gives them the ability to exploit it. It's just a matter of time before the air we breath is taxed or licensed to us. Greed.
[ link to this | view in thread ]
JMT (profile), 26 Jul 2011 @ 3:07pm

Re: Re: Re: Gosh, Mike, another VITAL FASHION QUESTION!
"...pretty much everything has already been done..."

Stupidest...
Statement...
Ever.
[ link to this | view in thread ]
Anonymous Coward, 26 Jul 2011 @ 6:03pm

Re: Re: Re: Re: Re:
The key to copyright as it is supposed to be used is that it turns into money only if it is used.

The key to copyright as it is actually used is that it turns into money if someone else uses it and they can be sued for infringment. Suing for infringement is easier if it is locked up and no one realizes that the copyright exists.
[ link to this | view in thread ]
nasch (profile), 26 Jul 2011 @ 9:31pm

Re: Re: Re: Re: Re:
One of the keys of copyright (and patent for that matter) is that the only time it turns into money is if you use it or license it. Just holding it up isn't really in anyone's interest.

Yet time and again, we see copyright holders sue rather than license. Why do you ignore this, or assume it would be different with clothing?

Basically, the Kelly dress would not be a copyright that the other dresses would violate

Time and again, we see copyright holders stretch interpretations of similarity, copying, fair use, and idea vs. expression. Why do you ignore this, or assume it would be different with clothing?
[ link to this | view in thread ]
ethorad (profile), 27 Jul 2011 @ 12:53am

Re: Re: Re:
No one wins except the lawyers

And the juries who get paid time off work to look at attractive women with plunging necklines ...
[ link to this | view in thread ]
chris, 27 Jul 2011 @ 7:56am

Re: Re: Re: Re: Re:
You're assuming the copyright holders are acting rationally. In practice, we have situations where authors can't get copies of their own books. Also large businesses only bother licensing to other large businesses. Small local dressmakers would be forced out of work, but maybe you are okay with that.
[ link to this | view in thread ]
Anonymous Coward, 27 Jul 2011 @ 8:05am

Re: AnonFail
That's kinda what I think, personally. I would never give wedding dresses 2 hoots of a glance to tell if they are different or not, nor would I care to.

They are white, with lace, and sometimes shiny objects.

Besides, IF I were ever to remarry, I would want an LCD covered dress that could stream w/e content I wanted to it during the wedding!

Patent Infringement on Multiple Levels!!
[ link to this | view in thread ]
chris, 27 Jul 2011 @ 9:00am

For copyrighted materials, the only value lies in their creative aspect and the cost of replication is virtually zero. Things like clothing and food have inherent value other than their creative aspects. People will still buy them even if they aren't innovative. No incentive is needed to produce them. Therefore things like fashion and food copyright don't make sense.

Unlike a supply of new books, music and movies, I doubt most people would consider a supply of creative clothing important to society. It amounts to planned obsolescence, which generates an amount of waste matched by few other industries today. Also, once you start placing more value on the creative aspects of clothing, the other aspects such as construction go to crap, which they have. Today's clothing is cheaply made and falls apart quickly. That's okay because you are expected to continually re-buy everything in order to stay "in fashion".
[ link to this | view in thread ]
Michael (profile), 29 Jul 2011 @ 9:45am

Re: Re: AnonFail
That's a sweet idea. You might be able to fun part of your wedding through adverts on the dress. That's prime real estate!
[ link to this | view in thread ]