NEW YORK, United States — In the United States, copyright law does not protect fashion designs. As you would expect, there is a lot of copying in the US industry. In Europe, copyright law protects fashion designs. And yet, there is still a lot of copying and the law is often ignored.
Some have called for the extension of US copyright to fashion design and, likewise, for the strengthening of European copyright protections. But we believe both of these scenarios would be bad for the fashion industry. In fact, we think that the freedom to copy is an important element of the fashion industry’s success, both in the US and in Europe.
To see why, consider this exchange: In 2011, Oprah Winfrey asked Ralph Lauren how he “keeps reinventing.” Lauren answered: “You copy. Forty five years of copying; that’s why I’m here.” Lauren, a Jewish kid from the Bronx who built a spectacular career reinterpreting the look of the old WASP aristocracy, was at least partly joking. But what made the quip funny was the fact that everyone knows knock-offs are a pervasive part of fashion.
They have been since long before there were fashion weeks in New York, Paris, Milan or London. During the Great Depression, New York apparel houses were famed for copying. As Time magazine noted in 1936, “A dress exhibited in the morning at $60 would be duplicated at $25 before sunset and at lower prices later in the week.”
We see that same basic fact across the US and Europe today. Some of the most well-established and profitable fast fashion houses — firms that often take their design inspiration from current runway looks — are European. H&M, Topshop, Zara and Primark all engage in runway copycatting, which lets great design trickle down to the masses, and not just remain the province of the rich. And high-end European designers mimic their colleagues’ looks every bit as often as their US counterparts do.
Copying, in short, is nothing new. That fact is important, because today one of the most common arguments for stricter regulation of fashion designs is that the arrival of the Internet makes copying faster. Even if copying was benign in the past, some say, now it is destroying the incentive to create.
Yet history tells a very different story. For 75 years, fashion has been an industry prone to mistaken predictions of its own demise. During World War II, Maurice Rentner, head of the leading early 20th Century US fashion trade group, the Fashion Originators Guild, declared that unless Congress acted to protect designs, quick copying would “write finis” to the American dress industry. And in the decades that followed, fashion designers repeatedly claimed that transatlantic air travel and fax machines and computer-aided design and digital photography would speed copying and destroy their business.
With every new perceived threat, the fashion industry tried to convince the US Congress to ban fashion copying. Those efforts failed; copying continued unabated. And yet the sky did not fall. In fact, the New York fashion industry boomed in the postwar decades, and it continues to thrive today.
Why? Because fashion piracy does not destroy the incentive to create new designs. In fact, it actually strengthens it. Every time a new design is widely copied, fashion’s most powerful marketing force kicks in: the trend. Copying makes trends, and trends sell fashion. As a design is copied, it spreads through — and usually down — the market. That makes the design less attractive to early adopters, who seek distinction, not diffusion, in their looks.
So copying helps a trend take hold, and then helps destroy the trend it created. As consumers leave the dying trend, designers are ready with new designs, some of which are then copied, creating new trends. We call this the Piracy Paradox. Far from killing the incentive to create, piracy increases it.
This cycle of old fashion trends giving way to new ones is of course familiar — even Shakespeare noted it in Much Ado About Nothing, in which he observes that “I see that the fashion wears out more apparel than the man.” What proponents of fashion copyright law miss is that the fashion cycle is fuelled by copying, and whatever minor changes the Internet has made to the speed of copying only fuels that even more. Take away the paradoxically positive effects of piracy and introduce copyright lawyers and lawsuits into the fashion industry, and we’ll get a bunch of happy lawyers. But we’ll also get a poorer, less creative fashion industry.
Professor Kal Raustiala (UCLA School of Law) and Professor Christopher Jon Sprigman (New York University School of Law) are the authors of “The Knockoff Economy: How Imitation Sparks Innovation.”
The views expressed in Op-Ed pieces are those of the author and do not necessarily reflect the views of The Business of Fashion.