The Culture of Copying
posted by LIM College
“Who owns a look?” Johanna Blakley, Deputy Director of the Norman Lear Center at University of Southern California, posed that question at a recent presentation about the lack of copyright laws that might protect fashion designs in the United States.
Knock-offs--counterfeit copies of original designs--to some seem like a crime against fashion. But call the fashion police and they are powerless: there is no copyright law that shields fashion designers from copyists.
We’ve all seen bad copies, and can tell the difference between a designer original and a fake. Yet "signature looks," those that define a brand, and logos that are associated with designers, are the only elements of design that can be protected legally. That is only possible when they are are trademarked.
Another element of the U.S. Copyright Law for Protection of Design protects elements of a design that qualify as a “useful article.” As the Copyright Law states, “All three branches of federal intellectual property protection—copyright, patent and trademark—protect certain aspects of useful articles.” Because of that principle, the buckle on a belt can sometimes be protected under copyright (the buckle is essential to the use of the belt) but an amazing pattern or fabric used in the belt would not be protected.
With regard to the trademark laws that have greater ability to guard against counterfeiters, the U.S. Copyright Office says, “Even to the extent that a product configuration qualifies for protection under trademark law, the protection is only against uses of the design that confuse or mislead consumers, or create a substantial likelihood of such confusion.” So, even if many crucial features of a design such as color or trim are imitated directly from a designer, if the apparel could not be mistaken for the original for some other reason, for example the type of fabric, the original design is not protected.
Tom Ford said in a statement about knock-offs, “We found that… the counterfeit customer was not our customer.” Since pretty much all fashionistas can easily spot a counterfeit design, Ford may have found a business reason that knock-offs are not a great threat. He sells to a different demographic than the one that would be satisfied with a knock-off. But doesn't everyone sometimes purchase a copy when the original is outrageously expensive, and perhaps not at all worth the difference in price? In addition, since fashion of the past inspires current fashion, how can imitation, in itself, be so wrong? As Johanna Blakley discussed in her presentation, sometimes copies can revitalize a design and give it a “charming” new feel, which can be attractive to even the most label-conscious shoppers.
This topic is a perennial favorite at LIM College, and in a past issue of Fashion Sense, the college magazine, Cassandra Hass wrote about copyright and knock-offs. Caitlin Mantagas, the next year, wrote about the sampling phenomenon, the whole culture in music, art, and other creative endeavors in which taking pieces of the creative work of others and making something new is easier than ever thanks to new media and technology. The fashion trade journals have been following this story for years as the laws about copying have developed. The issue cuts to the heart of our desired careers in fashion. What constitutes creativity?
When shopping, keep in mind the idea of copy culture that has both negative and positive impact on the economy and fashion industry today. Let us know, with a comment, what you think about the value of originality, authenticity, the "real thing."
-- Adriana Rivera
The US government's copywright page, with instructions on how to protect ideas
A casual discussion of the fashion cycle, from inspiration to copying to remaindering
A thoughtful consideration of originality in furniture design