NEW YORK, United States — Across international jurisdictions, fashion design protection is one of the least harmonised areas of intellectual property law. While designers’ names and logos are almost universally covered by trademark law, the physical articles of apparel and accessories to which they are attached often have no protection at all. France offers full copyright protection to fashion on an equal basis with other artistic media, and many other nations with influential or aspiring design sectors — including all of Europe, Japan and India — provide a significant level of design protection to new creations. However, in countries including the US, brands must make do with scraps of legal protection for limited aspects of fashion design, such as fabric prints.
Once upon a time, between 1858 (when Charles Frederick Worth gained a reputation for establishing the couture system) and the 1960s fashion revolution, the seasonal, top-down nature of the fashion industry and the time lag between original designs being presented and the appearance of knock-offs provided a degree of structural protection against copying. Twice a year, Parisian couturiers dictated style to the elite, department stores offered authorised copies to the merely wealthy, and knock-off artists dressed the masses months later, before the process began again.
Economist Paul Nystrom described this cycle back in 1928, but its role in setting the pace for the progress of fashion disappeared years ago, undermined by the prevalence of creativity not only at the couture level but at all price points, which gives the average customer access to original designs rather than having to wait for knock-offs; the decline of season-specific styles; and the speed of fast fashion copies, which now often appear for sale before the originals reach stores. And over the past two decades, global copyists’ immediate access to runway images online has made designers even more vulnerable. As a result, today, designers have no window in which to recover what in any other industry would be called their “research and development” costs. Meanwhile, design pirates avoid the cost of hiring design talent and cherry-pick the most commercially successful designs each season – mostly unchecked by legal restraints. The concentration of manufacturing in China and other countries with little economic incentive to protect creative designers has further exacerbated this problem.
The consequences of this systemic breakdown are especially severe for emerging and independent designers. Established fashion houses suffer the consequences of copying as well, but, to an extent, they can hide behind the strength of their labels — which are protected by trademark law. By contrast, lesser-known designers have to rely on selling their designs rather than their names — and those who steal emerging designers’ work typically copy everything but the tell-tale logos, leaving even well-intentioned consumers unaware they are purchasing copies.
This burden on creativity harms consumers as well. Emerging designers without celebrity status have a more difficult time succeeding in the industry, which means fewer new ideas entering the marketplace. Retailers operating in jurisdictions that allow slavish copying need not offer consumers a choice of variations on popular trends, instead stocking their racks with cheaply made stitch-for-stitch copies. Fast fashion has a legitimate role to play, but the world’s most successful fast fashion companies – including H&M, Zara and Topshop – are all based in countries with significant protection for fashion designs. As a result, they are required to make changes to recent designs that inspire their merchandise and thus present options to consumers, or pay up when a knockoff veers too close to the original.
There are glimmers of hope on the horizon for creative designers, however. In the absence of worldwide legal protection, many designers have devised self-help methods of protection, most recently by turning the power of the Internet against copyists who have used it both to hunt for new targets and to sell their knock-offs. But social shaming and public outcry only work against a background of potential legal enforcement, or when the copyist has a reputation to lose. Some countries, including the US, have considered modernising their intellectual property laws to support their creative design sectors, and those conversations are likely to continue.
Fashion’s current debate over whether to embrace direct-to-consumer shows may mitigate both the disconnect between promoting styles that won’t appear in stores for six months and copyists’ exploitation of the traditional fashion calendar. However, while the new immediacy may hinder design piracy, it may also presage a return to the old secrecy, when industrial espionage prevailed on Seventh Avenue in New York and other garment centres around the world — only this time with universally available mobile phone cameras. Even if attempts to reveal new collections only to trusted industry insiders effectively thwart copyists, the public benefits of a strong system of intellectual property protection — encouraging transparency and creative exchange, while allowing designers to reap what they 'sew' — will be lost.
Most property is protected by a system of both law and locks. It’s illegal for a thief to enter your home and steal your handbag, but chances are you lock the door anyway. Fashion designers – like authors, musicians, filmmakers and other creative contributors to the global economy whose work is supported by intellectual property law – deserve at least a minimum level of legal protection.
Professor Susan Scafidi is the founder and academic director of the Fashion Law Institute, an independent non-profit organisation based at Fordham Law School in NYC and the world’s first organisation dedicated to the law and business of fashion.
The views expressed in Op-Ed pieces are those of the author and do not necessarily reflect the views of The Business of Fashion.