-- ChristinaYoun - 01 Apr 2008

Fashion, Copyrighting, and Society

Introduction

The Council of Fashion Designers of America (CFDA) has been pushing Congress to pass H.R. 5055, which will include fashion design to be protected under copyright. Designers such as Nicole Miller complain that their “original designs” should be protected because copying makes the trends “end too fast,” makes clothes “lose value,” and “ruins the whole thing.” But would it be wise to extend IP laws to protect fashion design?

Why does it matter?

Copying allegedly accounts for more than 5% of the $181 billion American apparel industry. If designs were copyrighted, the copyists would presumably pass down some, if not all, of the increased legal costs associated with licensing and checking materials for copyrights to consumers by increasing the price of clothing or by further decreasing the quality of clothing. Copyists may also cut manufacturing costs (i.e. worse labor practices) to retain their current margin of profit. Copyrighting could also stymie the endeavors of independent designers who want to create their own labels, but cannot afford the new legal fees. The lack of funds may compel them to work for an already established brand, under someone else’s concepts and styles, hindering creativity. Finally, copyrighting would make following trends more costly for designers. If certain design elements were copyrighted, then non-copyright-holders would be subject to licensing fees and would be more reluctant to use those design techniques and elements in their own works. This would further the trend of “trends ending too fast,” that the Houses frequently complain about.

What is being sold here?

Fashion, as an institution, is based on copying elements from other designs and disseminating the trends. A trend is a trend because everyone is doing it. Throughout the years, hemlines have risen and fallen. Waistlines have sat high on the hips and super low. Every season, we see very similar design elements from the Houses, which get reinterpreted and distributed to your local Forever 21.

Then, what is so different about low-end fashion manufacturers copying “original designs” when the “original designs” themselves are copies of other designs? Some differences include retail price, quality of materials, and craftsmanship. But most importantly, the “original designs” all have insignias, unique to the creating House, proudly emblazoned on the item. Ultimately, the Houses are putting their symbols, their good names on the market.

Trademark Laws

Currently, there exist trademark laws that protect brand names and logos. Original patterns and prints are also protected by law. Thus, the truly “original” aspects of the Houses’ production are protected already. For example, designer Tory Burch sued a number of chain stores for carrying ballerina flats with insignias too similar to hers. Likewise, designer Anna Sui sued Forever 21 for infringing on her unique prints on 26 occasions. There are more than twenty other designers who have filed similar lawsuits against Forever 21. Such intentional attempts to produce counterfeit original luxury goods are prohibited by law.

So what is "ruined"?

Manufacturers, retailers and even some intellectual property scholars insist that this copying is exactly what generates the fashion industry. Copying promotes industry by inducing current trends to become obsolete and creating demand for new ones. Those who buy the $11,000 outfits (many celebrities) will gladly do so again to keep “ahead of the fashion.” Ordinary people will see their favorite celebrities wearing the ahead-of-their-time pieces, wait (not for long) for similar designs to hit Forever 21, and perpetuate a trend. Once the trend gets played out enough, the former group will again seek out the new $11,000 “original design.” Sure, some “original designs” get leaked prematurely over the web and copies hit stores before the “originals” do, but chances are, unless the “original” is not following an already popular trend, most people wouldn’t buy the copy until they see it on TV or in magazines anyway.

If I think the entire industry is a scam anyway, why should I care about the copyright?

Like it or not, the fashion industry is a mainstay of American society and it will continue to grow in its current form unless there is some major intervening power. The industry is plagued with grave problems, a couple of which are: (1) women are “coerced” into accepting, even enjoying crappy clothes because they have no good quality alternatives; and (2) women’s clothing is made cheaply via sweat shops and other unethical practices. These issues are outside the scope of the copyright issue. However, refusing to address the copyright issue simply because it won’t fix the greatest problems of the industry is problematic.

Fashion copyrighting will do nothing for the betterment of society while inevitably hurting consumers. Society would not benefit because the licensing fees that the Houses collect from the copyists (who will pass the costs onto consumers) will not go towards providing better quality clothing or providing fair wages and better working conditions. Instead, copyrighting will limit consumers’ choices because they will have to pay more for the same crappy sweatshop-made clothes. If anything, copyrighting will provide Houses with even more money to advocate their current practices.

Surely, quality and labor issues need to be addressed. Perhaps legislation that impose a grading system and a high standard for merchandisable clothing will bring the quality of women’s clothes up to par with men’s clothing and legislation that does not allow sweatshop-made clothes to be imported/sold in the U.S. will ameliorate the labor issues. But again, these are outside the scope of the copyright problem at hand. Nonetheless, ignoring the copyright problem for this reason will ultimately harm more “innocent” people (as opposed to the industry “thugs”) and may indirectly empower Houses to continue their current practices.

Conclusion

The CFDA’s proposed copyright is harmful to society and offers no benefits. If CFDA’s motive is truly to protect the “originality” of the Houses, then it should make more effective use of the trademark laws already in place instead of pinching the copyists (and thereby the ordinary consumers) for a higher margin of profit.

• "Copyright" here means only a struggle for control. Of course the fashion houses aren't going to kill geese that lay golden eggs: they're going to tax them. You and I may both believe that only a weak form of property right will avoid reducing the overall profitability of the garment "sector" of the economy. But copyright allows the holder to capture the benefit of whatever increase in price the "infringer's" customers would pay without reducing total revenue, even if that reduces the copyists's profitability, so long as it doesn't put them out of business. Working women, unlike high fashion's customers, care what they pay for clothes. So the Houses are trying to "monetize" their designs by forcing up the copyists' prices a little bit and keeping the rise for themselves in license fees. Lots of possible fee structures would "allow young designers to succeed," etc. These guys aren't entirely stupid, and they aren't trying to ruin the industry: they just want to make some more bucks at someone else's expense. I am as much of a copyright minimalist as the next guy, or in fact more, but I can't see why I should care about the outcome of a fight over money between the thugs who run the copyists' and the thugs who run the Houses. If you want to present this as an issue to be concerned about, you need to offer something more ponderable than the prediction of a parade of horribles none of which makes economic sense, and therefore is most unlikely to occur.

Eben’s problem with the fashion industry is two-fold: (1) women are “coerced” into accepting, even enjoying crappy clothes because they have no good quality alternatives; and (2) women’s clothing is made cheaply via sweat shops and other unethical practices. He suggested that we compel the fashion industry as a whole to produce better quality clothing for women, as it does with clothing for men and that we force the fashion industry to pay fair wages to its factory workers. While I fully support such endeavors, I feel that it is outside the scope of the copyright issue. Furthermore, although banning such a copyright would not fix the graver social problems of “thug pushing thug,” relatively poor quality of women’s clothing, or sweat shop businesses, I think that refusing to address the issue simply because it won’t fix the greatest problems is problematic.

If this is really a case of “thug pushing thug,” fashion copyrighting will do nothing for the betterment of society while inevitably hurting consumers. Society would not benefit because the licensing fees that the Houses collect from the copyists (who will pass the costs onto consumers) will not go to providing better quality clothing or providing fair wages and working conditions. Instead, copyrighting will limit consumers’ choices because they will have to pay more for the same crappy sweatshop-made clothes. Moreover, copyrighting will provide Houses with even more money to lobby for their current practices.

Surely, quality and labor issues need to be addressed. Perhaps legislation that impose a grading system and a high standard for merchandisable clothing will bring the quality of women’s clothes up to par with men’s clothing and legislation that does not allow sweatshop-made clothes to be imported/sold in the U.S. will ameliorate the labor issues. But these are outside the scope of the copyright problem at hand. Nonetheless, ignoring the copyright problem for this reason will ultimately harm more “innocent” people (as opposed to the “thugs”) and may indirectly empower Houses to continue their current practices.

-- ChristinaYoun - 20 May 2008

NOTE: I'm still in the process of revising.

-- ChristinaYoun - 20 May 2008