For decades creative intellectual properties have been covered by copyright law – music, books, art, car designs, even the “Happy Birthday” song. But there’s one thing that’s not on the list: fashion design.
Jeannie Suk, a Guggenheim fellow at Harvard Law School, is working to change that.
“Protection against close copies only is the proper way to proceed,” Suk wrote in the abstract of “The Law, Culture, and Economics of Fashion,” for the Stanford Law Review.
Suk is now collaborating with New York Senator Charles Schumer on the Design Piracy Prohibition Act which he introduced in 2007. The legislation would give American fashion designers copyright protection against knockoffs, a protection European designers have had for 25 years. Diane von Furstenberg and the Council of Fashion Designers of America have advocated the bill that will protect original designs from the “substantially similar,”– Suk’s language in her Stanfor Law Review article.
Northeastern law professor Rashmi Dyal-Chand said the situation is pretty simple: “There are lots of things that aren’t copyrightable even if they seem creative because of the useful article exception,” she said. “Clothing is a creative product, but since it is a useful article it is not copyrightable.”
According the current Copyright Act, since clothing serves a utilitarian purpose, it can’t obtain copyright protection aside from “features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”
But students say it’s no secret that designers’ innovations are being blatantly copied.
Middler journalism major Nina Fair said that because she works at the clothing store Zara, she constantly sees knockoffs.
“This season, they are really into copying those ripped Balmain tops and velvet Prada pumps,” she said. “Even though there are no logos on them, I recognize them from the Spring/Summer 2010 collections.”
Fair said she thinks fashion designs, like any other work of art, should be protected from this obvious replication.
“I just think it’s sneaky,” she said. “The designers of these prestigious fashion houses work hard to get where they are and dedicate their lives to their collections, and the real things are like works of art in a way. It’s not fair for someone to just offer basically the same thing for much more reasonable prices. It takes a lot of the credit away from the real designers.”
Middler graphic design major Nader Boraie, who has a line of T-shirts called Labyrinth Clothing, said he has seen the importance of copyright law in his entrepreneurial ventures.
Since the designs on his shirts can stand alone as art, he is able to copyright them individually, however, he sees the difficulty in copyrighting more obscure forms of design that aren’t so cut-and-dry.
“I do see the problem with smaller designers copying high fashion designs for a low price,” Boraie said. “But, there is a huge difference between a high quality fashion designer’s clothing and something you get at a smaller store. Not everyone can pay for a $2,000 and up piece of clothing, which is why the smaller brands thrive on re-creating similar clothes that take the shape or idea of high quality fashion designers.”
He suggested a policy in which a certain amount of elements would be required to change in order to “borrow” an idea from an already copyrighted design or where the smaller retailers could gain license to a design by paying a small fee.
Thomas Starr, professor of graphic design, brought up the larger dilemma that such legislation would introduce: “Where is the line between utilitarianism and art?” he asked. “Some fashion design is totally art, there’s no question about it. But most of the things that we buy are somewhere in the middle and so that’s the problem. How do you define when they cross the line into art?”
Others said the legislation is foolish: Replication and imitation are simply the way the industry works.
“Products are mimicked, copied, and reproduced all the time with only minor tweaks so they don’t violate copyright laws,” said Kevin Donoughe, a middler political science major with a concentration on law and public policy. “If fashion designers didn’t charge $1,000 plus for a purse, there wouldn’t be an issue because more people could afford the product and there would be less of a demand for knockoffs.”
Mira Cantor, professor of art and design, said there’s no reason to prosecute the knockoff producers when there’s such an obvious difference between originals and recreations.
“It’s not a Chanel bag,” she said, of knockoff designer bags traditionally sold on the streets. “It doesn’t have the same hardware, it doesn’t have the same feel, it doesn’t have the same material you know that Chanel is made of. It’s like having a diamond ring that’s not a diamond, it’s a zircon.”
She said if a designer is talented and passionate about their craft, it will be evident in their own work and not that of a replication.
“I don’t think they [designers] need to worry about someone stealing their work,” she said. “It’s an absurd way to think about your work. You’re making work because you’re inspired to make it, you feel obsessed by making it and you want the world to see what you’ve made. If somebody lifts it, it’s not going to be the same because the level of your ideas and the level of your mastery will surpass those who copy it.”