Susan Scafidi on Copyrighting Fashion

In the comments of my entry

on knock-off fashion, Gerald Joseph told me to check out

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

    for decades.

  • 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 The article is based on an outdated,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

    per year.

  • 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

all concerned?

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

helping hand.

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