The Many Ways In Which Fashion Copyrights Will Harm The Fashion Industry

from the stop-it-before-it's-too-late dept

Earlier this year, we pointed to a video presentation by Johanna Blakley about why the fashion industry has thrived without copyright. The argument certainly wasn't new -- as we've been discussing (for nearly a decade) that industry as a model of an industry that innovates creatively without copyright. However, it certainly was timely, as the fashion industry (with a campaign led by someone who has been caught copying others' designs) has been able to get a new bill for fashion copyrights introduced, and the buzz in DC is that this time it might actually pass.

So what does Blakley have to say about the new bill? Well, she's put together a wonderfully written, if depressing, look at why this law simply is not needed, and how it will almost certainly harm the industry and many fashion designers:

It's worrisome to think about the frivolous litigation that such legislation could introduce (that's not exactly what our over-taxed court system needs right now) as well as the ethical problems associated with conferring an arbitrary right of ownership to any Joe Blow who decides to lay claim to a certain combination of design features which used to belong to the public domain.

Right now, designers pore over vintage magazines and patterns and visit museum archives in order to find inspiration for the next season's look, cherry picking design elements that feel fresh and in line with the current zeitgeist. It's a refreshingly open process unhindered by legal consultations. Those archives could become battlefields where litigants try to find evidence to support their assertion that a design is or is not unique. The geeky librarian in me is worried that some powerful people may attempt to limit access to particularly rich collections of design history and some unscrupulous types may destroy or hide rare materials that prove that their new design isn't as unique as they claim.

The scope of items that the bill intends to protect is larger than you probably think. It's not just ornate red carpet gowns: it also includes coats, gloves, shoes, hats, purses, wallets, duffel bags, suitcases, tote bags, belts, eyeglass frames and underwear. I can only imagine the lengths to which some companies with deep pockets will go to lay claim to an exclusive right to an iconic popular design.

The sad thing is that just about everyone will suffer (well, except for lawyers). Consumers will pay higher prices (someone has to pay those legal fees) and they won't have the same access to the plethora of knock-offs that allow them to participate in global fashion trends without paying aristocratic prices. Designers who can't afford legal counsel will worry about being accused of copying and they probably won't be able to sue if someone copies them because, well, litigation is expensive.

The real travesty in all of this is how there is a total lack of evidence that this new copyright is needed. No one has shown a single shred of evidence to support this. It's the same point that we've made over and over again when it comes to copyright law. If you are going to demand government granted monopoly protections, shouldn't there be a relatively high burden to prove the need for one? Instead, we seem to be going in the other direction. Those seeking such protections demand them, claim they're necessary, and argue that it's somehow "unfair" if they don't have such protections. Blakley points out how unnecessary this new copyright is, quite nicely:

But just because copying is legal doesn't mean it's acceptable. In order to succeed, designers have to develop a signature style -- a look that everyone will instantly recognize as theirs. Designers who have reputations as innovators don't want to be accused of copying, so they have a strong incentive to come up with something new every season that's unique to them and their signature style.

There are several reasons why the fast fashion giants like H&M, Zara, Forever 21 and Topshop haven't destroyed the business of high-end designers. One obvious reason is that the customer who shops for the $19.99 version of a Chanel skirt is quite simply not the same customer who buys clothing in a Chanel boutique. That's one reason that so many A-list designers -- including Karl Lagerfeld and Vera Wang -- have decided to knock themselves off and create lines for lower-end retailers like Target and Kohl's. Far from cannibalizing their own product sales, these designers realized that they could expand their clientele and their brand by marketing a variety of products at vastly different price-points.

Over and over again, the courts have decided not to give extra protection to the designers who have complained about fast fashion knock-offs because designers have not been able to demonstrate that it has hurt their business.

In fact, the fast fashion industry has actually strengthened the fashion industry overall since it has accelerated the market for global fashion. The big bonus for high-end designers is that their influential designs become influential even faster than before. And because trends are established so quickly, fashionistas who buy the products that top designers sell have an incentive to move on to the next new thing when the masses have settled on the trendy knock-off. By the time the next season comes around, designers must compete all over again for customers hungry for the new designs that best capture the zeitgeist.

Those are just two snippets from an excellent, if disappointing, take on this new law that is nothing less than monopoly rent seeking by a few powerful interests in the fashion industry. It's no surprise that the fashion giants are seeking such protectionist policies. The real shame should be in Senator Chuck Schumer for falling for this over and over again (oh look, fashion industry giants happen to be in his state...), as well as those who co-sponsored the bill: Senators Orrin Hatch, Lindsey Graham, Sheldon Whitehouse, Kirsten Gillibrand, Olympia Snowe, Barbara Boxer, Dianne Feinstein, Ben Cardin, Herb Kohl and Kay Bailey Hutchison. If these are your senators, let them know how much you disapprove of such blatant protectionism that will harm everyone.

Filed Under: copyright, fashion, fashion industry, johanna blakley