In the comments of my entry
on knock-off fashion, Gerald Joseph told me to check out counterfeitchic.com
before writing more on the issue of counterfeits and copies in the fashion industry.
It turns out to be a wonderful site, full of verve and personality, run by a
visiting professor at Fordham Law School named Susan Scafidi. Unlike most of
the people I encountered on my counterfeiting
crusade, Scafidi is very outgoing and more than happy to debate her position
on the bill
currently before Congress which would allow fashion designers to copyright their
Here, then, is a a Q&A with Scafidi. I learned a lot, and Mr Joseph turned
out to be right: I do now have a more balanced view of the issue. It could be
that Surowiecki is right and that the fashion industry as a whole will not benefit
from the passage of this bill, but that Scafidi is also right and that smaller,
younger, and less established designers would benefit. It does make
sense to me that if a big retailer like Forever 21 wants to make a faithful
copy of a young designer’s work, it should at least be willing to pay that designer
something for her creativity and inspiration. But with the law as it stands,
it seems, there’s no incentive for the retailer to do that.
Felix Salmon: Susan, I’m very interested in your take on Jim
Surowiecki’s column in this week’s New Yorker. He claims that copying is
good for the fashion industry, and makes a number of points:
- As copying has grown, so have revenues and profits at the big fashion houses.
Empirically, it doesn’t seem to do any harm.
- Copying helps fashion consumers get bored with this season’s clothes and
therefore desire next season’s.
- If you allow copying, you allow the remix culture which has fueled fashion
- People who can’t afford originals can afford copies: copies are the best
way to get a new generation to take fashion seriously, and they play a crucial
role in imbuing high-end labels with that crucial yet elusive sense of desirability
without which fashion would simply evaporate.
Is he wrong, or misguided?
Susan Scafidi: Felix, the tired, old argument that copying
is good for fashion has been around since at least the 1920s – and has
been clearly false since at least since the 1960s, when fashion’s youthquake
upset the previous hierarchies of creativity. The article is based on an outdated,
pre-internet portrait of the industry – in other words, it’s "out."
The specific parts of the article that you’ve quoted are just as bad as the
- Revenues and profits at the big fashion houses rely heavily on trademark
protection – all those little "CC," "GG," and "LV"
initials decorating handbags and other must-have items. It is an empirical
fact that established fashion houses have thrived with intellectual property
protection, not without it. Small emerging designers, who cannot yet hide
behind their trademarks, continue to suffer from the copying of their designs,
as do designers whose artistic vision doesn’t include giant logos or repetitive
elements of trade dress. In addition, jewelry and textile prints have enjoyed
full copyright for over 50 years – actual fashion designs deserve some
legal protection as well.
- Fashions have traditionally changed with the weather, with or without copying.
Today, moreover, the speed of the internet and other technologies allows copies
to make it to the stores before the originals. When Narciso Rodriguez designed
Carolyn Bessette Kennedy’s wedding gown, one copyist alone sold approximately
80,000 copies; by the time Narciso was able to produce the dress, he sold
about 45. The "fashion cycle" has been short-circuited.
- Creative designers don’t just make "remixes" – they produce
original works. In fact, Marc Jacobs’ most recent show was considered unsuccessful
by fashion critics because it was too derivative of others’ work Since the
proposed design protection applies only to garments "as a whole,"
it won’t prevent original remixes anyway.
- Creativity now exists at all price points – as does copying. $30 Crocs
are knocked off for $10 – despite the fact that nobody over 6 years
old should wear the either the originals or the copies. In addition, our buying
habits now blend high and low; a recent
study showed that 20% of consumers who buy counterfeits make over $100,000
- The best way get any generation to take fashion seriously is to recognize
it as a creative medium and give designers the legal respect and support they
need – in Constitutional terms, "to promote the Progress of Science
and useful Arts."
Felix Salmon: Susan, is it really true that the big fashion
houses thrive because of trademark protection? It seems to me that
those trademarks are violated regularly, that the culprits are rarely prosecuted,
and that the fashion houses nevertheless go from strength to strength. Anecdotally,
it’s very hard to prosecute anybody for selling counterfeit D&G material,
because D&G in Italy is so unhelpful and uncooperative — maybe they know
that those counterfeits only serve to burnish the desirability of their own
brand, and that they act as free advertising?
It’s true that a copy does not necessarily constitute a trademark infringement.
But which designers, exactly, suffer from being copied? If an emerging designer
with a tiny showroom gets copied by a massive High Street chain like Forever
21, does that really mean the designer will sell fewer original designs? Are
you quite sure that Narciso Rodriguez would have sold more than 45 wedding dresses
were it not for the fact that his design had been copied? And if internet time
is of the essence in such cases, how would a slow and lumbering copyright-infringement
lawsuit help anybody? By the time it was decided, would it not be too late for
Similarly, the key question when it comes to counterfeits is not the number
of people on six-figure salaries who buy them; rather, it’s the number of people,
on whatever income, who in the absence of the counterfeit would have bought
the real thing instead. And against that one must weigh the number of genuine
buyers who, without the extra brand recognition afforded by the global counterfeiting
industry, would never have found that brand desirable in the first place and
wouldn’t have bought the real thing.
As for recognizing fashion as a creative medium, I’m not sure why that necessitates
copyright protection: as Surowiecki points out, "haute cuisine, furniture
design, and magic tricks are all fields where innovators produce new work without
being able to copyright it." Should they all receive the same legal protection
you wish for clothes?
Susan Scafidi: Yes, Felix, big fashion houses do rely on trademark
protection – you didn’t think that all of those repeated logos were just
aesthetic choices, did you? Of course, there are other reasons for selling clearly
branded merchandise as well, but legal protection is a distinct benefit. Counterfeiting
is an issue, but companies in most consumer goods industries (luxury and otherwise)
spend millions of dollars around the globe registering their marks, hiring companies
to ferret out both online and brick-and-mortar infringers, conducting raids,
educating customs officials, and bringing civil lawsuits and cooperating in
criminal suits against them. In other words, counterfeiting occurs on a large
scale, but so do anti-counterfeiting enforcement efforts – and companies
consider it worth the effort. Interestingly, three different general counsels
of fashion companies have recently told me that despite the scale of these efforts,
their PR departments don’t want them publicized – for fear of associated
their brands with counterfeits. Companies who carefully manage their brands
don’t consider a poor-quality fake sold out of a garbage bag on a street corner
to be free advertising. When it comes to reputation, the word they use is not
"burnish," it’s "tarnish."
The key question when it comes to the harmful effect of copies – counterfeit
trademarks or knockoffs – is not only how may people would have bought
the real thing, but also how great is the negative effect of cheap knockoffs
on the reputation of the original label. Trademark counterfeiting doesn’t create
brand recognition; brand recognition leads to trademark counterfeiting. Counterfeiters
don’t bother with unknown trademarks.
The designers who suffer from copying are the little guys – those whose
designs are copied, while their trademarks are not. Consider the accessories
designer who received an order for a belt from a large department store –
only to have the store place its larger reorder with a cheaper manufacturer.
Or how about the jeweler whose work was admired by a buyer at a trade show and
hoped for a sale, only to open the large company’s catalog months later and
see an exact copy of her design? Maybe the dress designer who saw her dress
praised in an online forum, only to have the next post recommend buying an exact
knockoff elsewhere – followed by thanks for the "tip"? Perhaps
you’d be convinced by the handbag designer who actually received a wholesale
order, only to have it canceled a few days later because the buyer found an
exact copy of her original design elsewhere at a lower price? The stories are
common ones, but these are not hypothetical examples. These are real people,
some of whom prefer not to be named. They have invested time, money, and talent
– R&D to any other industry – in realizing their visions, only
to have their work stolen, often by huge companies. You would recognize many
of the names of the corporate copyists; I doubt that most readers would ever
have heard of the startup designers.
I don’t know how many dresses Narciso would have sold if his design hadn’t
been copied, though he could probably make an educated guess – but that’s
exactly the point. Nobody really knows. He never had a fair chance.
The benefit of the Design Piracy Prohibition Act is not just that it would
give Narciso and many lesser-known designers a cause of action. It’s that it
would change the behavior of the large companies who stalk the runway and the
red carpet, waiting to copy everyone’s favorite look – without spending
a dime on sketches, samples, fittings, patterns, models, hair, makeup, stylists,
presentation space, photographers…need I go on? The copyists are professionals,
in the game for the cash, not creativity. If these design pirates know they
risk lawsuits over too-close copies, they’ll be forced to innovate, which is
the goal of the intellectual property system in the first place. If they copy
anyway, a cease & desist letter may be enough to stop them. And if it becomes
necessary to file a lawsuit, most will settle and pay up. That’s what happens
now in many textile copyright lawsuits in the U.S.; that’s also what happens
in countries that currently have design protection, including all of the E.U.,
Japan , and even India.
In making comparisons between fashion and other industries, the New Yorker
apparently hasn’t looked into their legal and social realities. Furniture is
protected by design patents (overall shape), copyright (surface designs), and
trademark – not to mention utility patents (innovative useful elements).
One lawyer who represents a number of furniture clients described the process
of protecting their designs to me as "triage," identifying what needs
to be protected and sending it to the appropriate government office. Cuisine
has a small amount of protection from copyright (recipe collections), and much
more from the social norms against copying among creative chefs, particularly
when it comes to signature dishes. Since my father is a serious amateur magician
(and I confess to having performed a bit myself years ago), magic tricks are
my favorite inapposite example. Not only is the literature copyrighted, but
many effects are deliberately kept secret by magicians, and unlike fashion can’t
be torn apart at the seams by interlopers. Penn & Teller’s antics aside,
there’s a guild – and it takes some effort to reach the inner circle.
Every industry is unique, and most copyright protection is one-size-fits-all.
In the case of fashion, designers recognize the seasonal nature of their work
and are seeking only 3 years of protection – not the term of "life
of the author plus 70 years" granted to other creators and their work,
you and me and these words included.
If the U.S. really does recognize fashion as a creative medium, we should
realize that young designers are struggling against copyists and extend a legal