WSJ.com - Can Fashion Be Copyrighted?

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Designers Want to Halt Knockoffs
But Some Say They Spur Sales;
'Few People Can Spend $4,000'

By BEN WINOGRAD and CHERYL LU-LIEN TAN
September 11, 2006; Page B1

As fashion models hit New York runways this week, they won't just be showing off spring 2007 designs aimed at high-end retailers. They'll also be providing a wealth of ideas for apparel manufacturers that copy runway looks -- usually with less-expensive fabrics, in foreign assembly plants -- for purchase by the masses.

Hoping to change that by following Europe's lead, prominent fashion designers in the U.S. are pushing for federal legislation that would offer three years of copyright-like protection for designs ranging from dresses and shoes to belts and eyeglass frames. Though the odds of passage in the current Congress appear slim, the bill has ignited a fierce debate over how the creative process works in the women's fashion industry, which rang up retail sales of $101 billion in 2005.

The central question is whether fashion design is an art worthy of protection or a craft whose practitioners can and should freely copy one another. In an industry where many designers come out with similar looks each season -- and where inspiration is said to be "in the air" -- designers and the thriving knockoff industry are hotly debating the issue.

Another key question: whether knockoffs, somewhat counterintuitively, actually benefit the industry as a whole. Copying, some argue, propels the fashion cycle forward by creating popular trends that spur designers to move on to the next big idea. In what they dub the "piracy paradox," law professors Kal Raustiala of the University of California, Los Angeles, and Christopher Sprigman of the University of Virginia argue that copying makes trends saturate the market quickly, driving the fashion cognoscenti to search out newer looks. "If copying were illegal, the fashion cycle would occur very slowly, if at all," they write in an article to be published in the Virginia Law Review. While they concede copying can harm individual designers, they say Congress should protect industries only when piracy stymies -- rather than encourages -- innovation.

Joel Paris, who offers some 2,000 handbag styles resembling designer models on his Anyknockoff.com Web site and clearly benefits from others' design inspirations, maintains that knockoffs can boost a design house's profile. "Let's say Versace does a pair of parachute pants. Then three months later, some other designers do versions of parachute pants, and a year later you go to Costco or Target and you see parachute pants there," he says. "Everybody's going to know that it was Versace that kicked off the trend. It's great for the high-end fashion designer."

Taking a different tack, Allen Schwartz, founder and design director of the label A.B.S. by Allen Schwartz, says he makes affordable knockoffs of red-carpet and runway looks to serve average consumers who can't afford high-fashion designs. For example, Mr. Schwartz is selling a $396 white strapless chiffon gown inspired by a $6,700 Alberta Ferretti gown worn by Debra Messing at the Emmy Awards. He's also introducing a $385 purple satin and chiffon version of a silk dress Evangeline Lilly wore to the Emmys. The original was designed by Versace, which says its price is available upon request.

"My job is to bring trends to the consumer at a fair market price," says Mr. Schwartz. "Few people can spend $4,000 on a dress."

But fashion designers -- who invest time and money drawing sketches, ordering samples and making adjustments -- say such arguments ring hollow. Designer Catherine Malandrino, who says she has seen almost identical versions of her blouses and sweaters in such stores as H&M and Esprit, maintains that copying isn't the only way to bring fashion to the masses. "If you're creative, you can design original designs that are affordable," she says. "You don't have to knock off what other people are creating."

Designer Tracy Reese, whose dresses sell for several hundred dollars, says she recently saw a dress from her Spring 2003 collection knocked off by Eci New York, a sportswear brand that sells in such stores as Macy's and Nordstrom. The $164 dress by Eci featured both a similar pattern and silhouette, Ms. Reese says. "My first thought was, 'Can I sue them for this?'"

At the moment, probably not. Currently, federal trademark law protects against infringement of registered logos, brand names and distinctive patterns, like Burberry plaid. Counterfeiting, in which bags, sunglasses and other fashion items are fraudulently stamped with the designer's name, is outlawed.

But when it comes to the basic cut of a dress or shape of a purse, manufacturers are generally free to copy -- or "reference," as many put it -- any style they want. Fashion design has historically fallen outside the scope of copyright protection because it was considered a craft, not an art, dating back to a time when clothing served to simply cover the body, says Susan Scafidi, a law professor at Southern Methodist University who runs a blog on counterfeit fashion. Today, "fabric is a means of expression, just like pen or ink," she says.

Under the proposal, designers for the first time could register clothing designs with the U.S. Copyright Office. Registrations would cover the overall appearance of the item in question, barring even those made with inferior fabrics. But designers couldn't protect commonplace designs already in the public domain, like jeans, T-shirts, wrap dresses or trench coats, or anything before the law was passed, such as styles from previous seasons.

If the designer believes another person infringed his copyright, he could sue those who sell or manufacture the design in federal court. Those found guilty would face fines of 250,000 or $5 a copy, whichever is greater.

In other fields, copyright law bars duplicates found to be "substantially similar" to originals. But critics say applying that standard to fashion design would be difficult, and some fear the bill would stifle innovation because designers would constantly worry about being sued. "I don't know how they're going to police this," says Mr. Schwartz of ABS, whose knockoff gowns could be a prime target if the law passes. "This could really damage the creative part of the business if they start putting restrictions on people."

"It's going to be crazy -- there are going to be a lot of lawsuits flying around that have no merit," says Steven Feinstein, president of Eci. He says his company designed the kimono-like dress that upset Tracy Reese after hearing that Japanese-style pieces would be popular this past spring.

The proposed U.S. law would be more modest than the protections offered in Europe. In one famous dispute, Yves Saint Laurent successfully sued Polo Ralph Lauren under a French law in 1994 for copying his $15,000 tuxedo dress. The European Union now grants three years' protection to original fashion designs and allows creators to apply for 25-year extensions. Even so, knockoffs are a thriving business in Europe where purveyors of fast fashion as H&M, Zara and Top Shop freely adapt recent designs from the runway to make inexpensive versions.

In addition to established names, the U.S. bill's supporters say that copying hurts young designers in particular. One example is Jennifer Baum Lagdameo, who runs the handbag label Ananas from the basement of her home outside Washington. For fall 2004, she designed a leather handbag with coconut-shell rings -- dubbed the "Furoshiki" -- inspired by the shape of a traditional cloth used to wrap gifts in Japan, where she once lived. The bag was once her best-selling model, but she says numerous retailers canceled orders after several clothing labels produced similar designs that sold for between 10% and 50% of her $285 price.

As it is, even designers can have difficulty discerning their originals from the copies. Evening-wear designer Carmen Marc Valvo recalls recently meeting a fan who was wearing a chocolate-brown, halter-necked cocktail dress he initially thought was his. "She came up to me and said, 'Oh my god, I love your designs,'" he says. "When I took a closer look, I said, 'Wait a minute, there's something different about this dress -- it has a different back!'"

Still, Mr. Valvo says he's been copied so much he now shrugs it off when he sees styles that imitate his work. He finds the idea of legislation "insane," he says. "Fashion is more evolutionary than revolutionary -- you're always inspired by something else. Besides, I don't think anyone copying me would be able to do it the same way."