The Folly of Trying to Own Fashion

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Imagine if blues great B.B. King were able to prevent other artists from imitating his signature riffs, or Einstein’s estate could prevent scientists from using E=MC2 without first getting permission or paying a royalty. The blues would languish as an art form. Theoretical physics would remain stuck in the 19th Century.
It sounds silly, but that’s more or less what Senator Charles Schumer is proposing we do for clothing design – lock it up as private property. A few days ago, he announced legislation that would for the first time in history extend copyright protection to fashion. The bill may earn Senator Schumer some brownie points among the high-fashion businesses in New York City, but for the fashion industry as a whole – and for consumers – the idea is a disaster.
Copyright protection for clothing would shut down the robust competition and creativity that allows this great global industry to develop new ideas and trends. Big-name fashion houses could monopolize a design, and then sic their lawyers on competitors who dared to do what they have always done – produce “substantially similar” shirts, trousers and jackets.
Citing instances of “piracy” assembled by Council of Fashion Designers of America, Senator Schumer criticized the look-alike items of clothing as “stealing, plain and simple.”
Actually, there’s another name for such activity – a trend – and it is the economic heartbeat of the industry. Prohibit copying and derivations in fashion, and you are essentially outlawing the economic benefits of trends. Does it bear mentioning that fashion is based on trends?

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Most people don’t realize that fashion is one of the most creative and competitive industries in the world precisely because you can’t own the herringbone suit or peasant dress or boat-shoe design. Anyone can imitate or even knock off a design, even down to specific motifs and flourishes.
What competitors can’t do is pass their work off as an original Dior or Prada. The name and logo are trademarked, and claiming to be a Dior or Prada is a consumer fraud.
That’s the genius of the fashion biz: Companies can make money by marketing their names and logos, but the creative design itself is free for anyone to use. As a result, dozens of companies are free to produce a variety of designs around a common theme – wide lapels, Polynesian floral prints, hip-hop styles – and sell them using different quality materials and at different price-points.
The result: a trend takes shape. Huge numbers of consumers want to get in on the trend – and the industry sells more clothing than otherwise.
If we give one designer a copyright on a design, however, you short-circuit the possibility of trends. Only one company “owns” the design. This means that copyright law would stymie innovation and competition, and consumers would pay higher (monopoly) prices for fewer choices.
Worse, you invite lawyers and judges into the process. Do we really want judges deciding whether Donna Karan’s latest line of dresses ripped off a previous designer?
We already know the answer: Of course she did! Fashion is based on constant borrowing, imitation and transformation of prior works. While there are obviously many creative geniuses in the fashion world – especially in the timing of their new designs – no one is wholly “original.” Giving exclusive property rights based on some slippery, legalistic notion of “originality” would undercut the energetic creativity and imitation that is the engine of the fashion business.
Two years ago, The Norman Lear Center studied this phenomenon in a conference, “Ready to Share: Fashion and the Ownership of Creativity.” We heard from designers and fashion journalists who confirmed that creativity can remain fresh and vital only if it has room to breathe and grow. Law professor Chris Sprigman has also studied how fashion creativity is enhanced by the absence of copyright protection. In a fascinating paper, he calls this dynamic the “piracy paradox.”
We need to get beyond the simple equation that “copying = piracy” and begin to see that “creative derivation = economic vitality.” Fashion history confirms this truth. Oscar de la Renta has candidly admitted that his designs derived from famous peers. Lagerfeld drew upon Chanel. Ungaro was the protégé of Balenciaga. And so on.
Guy Trebay, a fashion reporter for the New York Times, has wryly noted: “Adolfo builds a wildly successful business on an interpretation of a boxy suit by Coco Chanel; lucky for him Ms. Chanel, being dead, is unable to litigate. Tom Ford becomes famous copying Halston, Alexander McQueen for aping Vivienne Westwood. Half of fashion, in fact, seems to owe its professional existence to a single truism: one is as original as the obscurity of one’s source.”
The legendary designer Coco Chanel is revered for her many stylish creations, including the “little black dress,” but she had no illusions about “owning” clothing design. She warned: “Fashion design should slip out of your hands. The very idea of protecting the seasonal arts is childish.”

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