Unit 3 Essay
Erin Mahone
"From the catwalks of London to the rubbish heaps of Kampala the impact of fast
fashion is wide and deep” (Jack Garland). This quote expresses that the impact of
fashion is universal and is seen in every type of economical/worldly setting. One of the
most prominent settings is Fashion Week in New York City. This is the week of the year
where the entire fashion world is awaiting the premier of new collections from the latest
designers. This is where all the well-established designers, along with upcoming
designers, show off their new collections to the world. The shows have 24/7 online
streaming for people who are not a- list celebrities or fashion icons that are lucky enough
to be in attendance to the actual shows. Overall this is where the rest of the world gets
inspiration for what will be selling in retail stores worldwide for the upcoming year.
Some stores even get so inspired by these luxury designers’ looks that they create looks
that are so similar they could be mistaken for the same item just at very different price
levels. This has been a controversial topic in the fashion world recently because stores
such as H&M, Topshop, and Forever 21 have been accused of “copying” designer’s
looks and well needless to say the designers are not happy about it. This raises the
question of the legality of these stores actions and what is being done about it? This essay
will explore what the legal and ethical implications of these ‘off brand’ fashion designers
creating and selling clothes that closely mimic some of the top designers’ lines?
Design Piracy is the technical term concerning designers copying other designers.
The action is of design piracy is defined as the “blatant copying of another's designs is
akin to counterfeiting without affixing the fake designer label” (Tan, 894). This allows
the low-end designers to copy high-end designers ideas, as long as the high-end
designer’s logo isn’t used. In the article “Knock it off Forever 21! The Fashion Industry's
Battle Against Design Piracy”, Irene Tan goes in depth about how design piracy not only
can cost designers millions of dollars in revenue each year, but also the livelihood of
hundreds of thousands of people employed by the United States fashion industry.
Counterfeiting in the fashion industry is illegal and the laws are very clear and strict on
that end, but with piracy the legal lines become very can become blurred. The European
Union, Japan, and India have laws protecting fashion designs. Also France has been
protecting their designers for over a century (Felice, 236). Meanwhile, design piracy is
currently legal in the United States and with that being said, many designers are trying to
change this.
Designers should be protected against design piracy because it is not fair that their
original designs and ideas can be blatantly copied and sold without their permission and
there are no repercussions for the perpetrators. Casey Callahan discusses the reasoning of
why intellectual property of designers should be protected in her article: "Fashion
Frustrated: Why the Innovative Design Protection Act is a Necessary Step in the Right
Direction, but Not Quite Enough”. Callahan states that by designers being able to have
their intellectual property protected, and design piracy illegal it places a tangible value on
their ideas. The author also says that by not allowing designers to have these rights is
basically saying that what they create doesn’t hold much value but it also deters creators
from producing new ideas. The mindset of that knowing your designs will most likely be
copied and sold at much lower prices can allow designers to be less inclined to put in
more effort and creativity into their design process. It makes sense if you think about it,
putting everything you have (time, money, tears, energy, etc.) into your work and then it
being copied shortly after it is produced and becoming very popular without your name
on it is truly heartbreaking. Not only are these designers losing money but also their
willingness to create unique garments. Callahan brings up an important point by saying
that this lack of protection is not something that musicians, artists, filmmakers, and other
creators face so why do fashion designers not have the same rights? (Callahan,196). Even
if music or movies are pirated online, if caught there are legal consequences that are
strictly enforced, but for the fashion industry they are victim to the same issues but there
are no repercussions. Congressman Jerrold Nadler made a good point by saying, “Kate
Winslet’s movies are protected from pirates, but Kate Spade’s bags are not” (Felice, 237).
The theory of incentives is a good way to understand why fashion should be
protected just as much as films, music, and art. The theory states, “our (United States)
legal system does not allow a person to photocopy an author's book and sell it for his own
personal or economic gain, and it doesn’t not allow a person to obtain such copies for
free or at a steep discount. If it did, creators would have no incentive to continue
creating” (Callahan, 210). This very theory isn’t exclusive to literature, but all creative
mediums, so why is fashion the only media that isn’t protected?
Current copyright laws do not protect fabric designs from dress designs nor style,
cut, dimensions or shape. It also doesn’t cover details like pleats or buttons. This is a
problem because as designer Oscar de la Renta said, "My designs are known for their
sophisticated shapes and feminine silhouettes. The fit, cut, and detailing of our clothes are
as much a part of the Oscar de la Renta brand as our logo itself”(Felice, 238). What is
actually covered until the copyright laws is extremely limited. The fact that many
designers trademark themselves by some of these categories and cannot protect
themselves is outrageous. If this said design is an original idea that makes their brand
what it is, then it should absolutely be protected, otherwise any brand can copy that
design and the original designer loses their uniqueness and trademark.
There was a debate going on among congress, on the issue whether to extend
copyright protection to fashion designs in the form of the Design Piracy Prohibition Act
(DPPA), but that didn’t pass because it was believed that it would expose companies to
too many frivolous lawsuits. Senator Chuck Schumer proposed law in 2010 called the
Innovative Design Protection and Piracy Prevention Act (IDPPPA). This law proposes to
extend copyright protection to fashion designs. It would cover men’, women’s, and
children’s clothing, undergarments, outerwear, gloves, footwear, headgear, handbags,
purses, wallets, duffel bags, suitcases, tote bags, belts, and eyeglass frames. In order for a
design to be protected by this law it needs to be "a unique, distinguishable, non-trivial
and non-utilitarian variation over prior designs", this ultimately means that this law only
covers designs that are closer to art than functionality, and the coverage is still limited
(Felice, 244). This bill did not make it on the floor and was reintroduced by Congressman
Bob Goodlatte as the ID3PA, which has not yet been voted on. As you can see there have
been many efforts to get fashion designed protected from copycats, but all the laws have
failed.
Another term designers are hoping to get the courts to protect is known as ‘trade
dress’. Trade dress is things like the shape, color, font, size, styling, design, layout, and
overall appearance of a product. In order for this to be protected in court a designer must
prove secondary meaning, or that the design is directly associated with the designer in the
eyes of the public (Tan, 897). Trade dress could be useful to already well known
designers, but doesn’t help up upcoming designers very much because they aren’t “well
known” to the public yet. There needs to be another law that can protect aspiring
designers so they can in fact make a name for themselves. Without some sort of
protection how does anyone expect them to make it in the world of fashion if they get
ripped off before they even get anywhere?
To show some of the impact on how knockoffs affects the fashion world here are
some facts. On average it can take about 6 to 12 months and nearly $6 million to produce
a single collection, which contains around 10-12 looks. When knockoffs are produced it
makes this harder for the designers to make a return on this huge investment. Also with
the advancement in technology, after these looks debut in fashion week, retailers can take
pictures and videos of what they want and have similar looks created in China, note this
can all be done faster than the originals can hit stores (Tan, 899).
Tan shows an example of this when designer Narcisco Rodriguez testified before
Congress that one of his gowns sold approximately 7 to 8 million copies; however, only
40 of the gowns sold were originals. The reason? Knock offs, and because of these
Rodriguez did not make a single profit off of the 7 million gowns sold that came from his
original design (Tan, 899). This is unfair to designers since they come up with looks
based off their own creative ideas, but they are not making the full profit from sales. It
especially affects emerging designers more than anyone because they don’t have
trademarks yet and are unlikely to successful win a case with trade dress because they
aren’t a household name and are not known by the majority of the public (Tan, 924).
The company that is the most notorious for copying designers is Forever 21. They
seem to be involved in multiple legal complications with companies year after year. One
specific case against the mega company was from Anthropologie. The lawsuit took place
in 2007, and they accused the company of having “infringing merchandise features
patterns, fabrics and color schemes that are identical or virtually identical to the patterns,
fabrics and color schemes featured in the copyrighted Anthropologie garments"
(Casabona). They claim that the retail discount chain was trying to pass off merchandise
as its own, even though it was clearly copied fro Anthropologie. This was the second
time in 2 years that Forever 21 had been the court with Anthropologie (Casabona). This
reads almost word for word from the claims Diane von Furstenberg made against the
company in the same year. She believed that Forever 21 copied DVF’s Cerisier and
Aubrey dress designs along with the companies print called "mimosa" (Casabona). The
company has been sued by other companies such as ALDO, Bebe, Jeffery Campbell, and
Haraujku Lovers, just to name a few.
Forever 21 has been faced with 53 suits between 2003 and 2008, with that number
growing. All of these lawsuits have ended in settlements and were dealing with copyright
or trademark infringement. Forever 21’s competitor H&M has only been involved with 2
copyright lawsuits. Why such a vast difference in numbers? Tan states that H&M
“engages in loose design ‘referencing’ by borrowing high fashion ideas and interpreting
them for the masses, while Forever 21 generally copies a design to the very last detail”
(Tan, 915). The reason companies like Forever 21 can afford to constantly be in legal
battles is that these knock offs are hugely successful, making them enough money to
settle out of court and not take much a financial hit.
Another way that these copycats hurt designers is that when they have designed
something like a handbag that retails at $300, but then you can go to another store and
buy something that is so similar can be mistaken for the designer bag. The difference is in
the price, having this knock off selling at $50, which one are consumers going to buy?
This brings up the issue that the item is so available and it is not longer exclusive so
consumers don’t want it as much, which ultimately hurts the designers. In the mindset of
a high-end customer: they buy a bag for thousands of dollars to have the exclusive brand
name hanging off their arm, but then Forever 21 or Target knocks off this certain
handbag and now the masses can have an identical bag. Well now these high-end
consumers don’t want this now ordinary style bag anymore and it hurts the designers
profits.
Callahan brings up another point that the lack of copyright can result in a
distortion in innovation. This means that designers that have trademark protection tend to
use designs that are logo heavy so they can’t get knocked off. The problem here is that
thee designers are limiting themselves to logo centered items and they are putting a “cap
on their creativity” as she states (Callahan, 203). Louis Vuitton is an example of this,
they have their ‘LV’ logo all over their handbags, which is good in the sense that if these
are copied they can sue and will most likely win, but this is at the expense of the
creativity and designers are afraid to branch out and do designs that perhaps don’t revolve
around the iconic logo. Callahan suggests that these actions pull away from fashion being
about self-expression and more about brand advertisement (Callahan, 203).
On the other side of the issue Alexis Stevens argues that copyright laws should
not be put in place to protect designers. She states that the industry actually needs
copyright to continue the fashion cycle. She believes that trends are created when a
fashion designer debuts a look and then it is copied, it can’t be a trend if it is only from
one designer’s line. A fashion trend needs to come from fellow designers
reinterpretations. She also says that copying fashion designs forces further innovation
because it leads to a saturation of the design and a demand for something new (Stevens,
7). The problem here is that there is a difference between designers getting inspiration
from one another and copying an exact design, that why a law is so important and much
needed, because the can clear this obviously blurred line. Also designers internationally
have protection and the fashion industry is doing just fine without copying in other
countries.
Another view of the opposing argument comes from Kari Heyison in her article
“If It's Not Ripped, Why Sew It? An Analysis of Why Enhanced Intellectual Property
Protection for Fashion Design is in Poor Taste”. She reviews the current laws that are in
place to protect designers and explains her views of what the world would be like if it
was free of knock offs. She believes that the high end designers would design items and
reap the benefits of there labor and then relax for 3 years until their copyrights were up
and would create new designs and so on and so fourth and follow this cycle. This would
then result in a lack of fast fashion and impressive innovative. Also clothes would be less
affordable because only high-end stores could sell the ‘fashionable’ items and all the
knock off stores would go out of business. The problem? She says that our economy
thrives off of these knock off stores, and also that is what propels fashion (Heyison). The
first problem I have here is that if copyrights were put into place it would still allow
people to get inspiration from designs already created it just wouldn’t be allowed to have
an exact replica being sold off under another companies name. Second problem here is
that there are designers for all ends of the economic spectrum and by no means are more
affordable designers always copying high-end designers, so fashion would still exist on
all levels. Third problem is that the knock off stores, could now create clothes from
designers that are actually making original designs at affordable prices and that would
help open up a new area for the company and also the can make their own trends.
Competition would still exist and possibly even more than before because companies
would have to up their game to have the trendiest items at the best prices and actually
have to design things themselves. This would still keep fast fashion, competition, and
innovation alive and well in the fashion world.
After all the research I have completed for this essay I stand very firm on the
belief that designers should be protected just as much as another other artists on the topic
if copywriting. The issues that stem from this problem are immense. The fact that we live
in a society that allows blatant copying to be happening is unbelievable. American
designers have been fighting for years to protect their ideas and over that period of time
only a few laws have been created and they are so limited to what they even protect. I
don’t understand how there is a difference between the work of fashion designers and
authors or musicians that creates a vast difference in copyright protection.
I’m a fashion merchandising major, therefore I follow fashion very closely and
have a great amount of respect for designers on all levels of the price and prestige
spectrum. Being a college student I understand the want to be fashionable and keep up
with what is on the runways while maintaining a budget. It is great that stores such as
Forever 21, Topshop, and H&M can provide this for people that can't afford designer
labels, but how they are doing is not. They need to find a balance between getting
inspiration from designers (which I think designers could appreciate), and just flat out
copying them. In order to encourage companies to change their ways actual laws need to
be created and strictly enforced to help protect designers.
To also look at the other side of the argument, I see how some people would be
skeptical because then maybe places such as Forever 21 wouldn’t exist because most of
the merchandise is based off other people’s designs. I refute that because I think it would
encourage the company to redesign itself and others like it, because they would need to
actually have designers that create items that are original and affordable. This could also
lead into helping out young aspiring designers because that could create jobs for them. It
keeps the healthy competition still alive because now there is more pressure to stand out
and make trends of their own instead of stealing other people’s designs. The fashion
industry would still thrive just like the music, literature, and film industries. The benefits
from this change would be enormous, I think it would let creativity flourish, and give
credit where credit is due and let it stay there. Designers deserve protection just like all
other artist and it is about time they get it. As consumers we cannot stand by and let this
issue continue, we must stand up and make a change to protect the integrity of fashion.
Works Cited
Callahan, Casey E. "FASHION FRUSTRATED: WHY THE INNOVATIVE DESIGN
PROTECTION ACT IS A NECESSARY STEP IN THE RIGHT DIRECTION,
BUT NOT QUITE ENOUGH." Brooklyn Journal of Corporate, Financial &
Commercial Law. 7.1 (2012): 195-223. Business Source Complete. Web. 10 Oct.
2014.
Casabona, Liza. "ANTHROPOLOGIE SUES FOREVER 21." WWD: Women's Wear
Daily 17 Sept. 2007: n. pag. Business Source Complete. Web. 02 Nov. 2013.
Casabona, Liza. "Diane Von Furstenberg Sues Forever 21 Over Copyright." Women's
Wear Daily 28 Mar. 2007: n. pag. Business Source Complete. Web. 02 Nov. 2014.
Felice, Katherine B. "FASHIONING A SOLUTION FOR DESIGN PIRACY:
CONSIDERING INTELLECTUAL PROPERTY LAW IN THE GLOBAL
CONTEXT OF FAST FASHION." Syracuse Journal of International Law &
Commerce 39.1 (2011): 219-47. Business Source Complete. Web. 21 Oct. 2014.
Garland, Jack. "Fast Fashion from UK to Uganda." BBC News. BBC, 20 Feb. 2009. Web.
10 Nov. 2014. http://news.bbc.co.uk/2/hi/uk/7899227.stm
Heyison, Kari. "If It's Not Ripped, Why Sew It? An Analysis of Why Enhanced
Intellectual Property Protection for Fashion Design Is in Poor Taste." Touro Law
Review 28.1 (2012): 255-83. Business Source Complete. Web. 02 Nov. 2014.
Stevens, Alexis N. "Not Designed to Fit: Why the Innovative Design Protection and
Piracy Prevention Act Should Not Be Made into Law." Pace Law Review 32.3
(2012): 1-39. Business Source Complete. Web. 06 Nov. 2014.
Tan, Irene. "KNOCK IT OFF, FOREVER 21! THE FASHION INDUSTRY'S BATTLE
AGAINST DESIGN PIRACY." Journal of Law & Policy 18.2 (2009): 893-924.
Business Source Complete .Web. 10 Oct. 2014.
http://practicum.brooklaw.edu/sites/default/files/print/pdfs/journals/journal-lawand-policy/volume-18/issue-2/jlp_v18ii_5.pdf