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Should Congress Protect Fashion Designers Against Imitations?

May 21, 2008 - by Donny Shaw

The New York Times today ran a profile of fashion design house Foley & Corinna that neatly illustrates the paradox plaguing a bill in Congress to extend copyright protection to fashion designs. If passed, the Design Piracy Prohibition Act would end an approximately sixty-year period in which the fashion industry has existed without IP protection. But as today’s article illustrates, there may be a valid and defensible reason why the industry has existed so long without protection.

>Last year, the retailer Forever 21 prominently displayed a $40 copy of a Foley & Corinna $400 floral print dress [original and copy pictured at right], which Paris Hilton had worn on the “Late Show With David Letterman.” The copy was so exact that a group of designers who were seeking copyright protection from Congress used it as an example of the pervasiveness of fashion piracy. Foley & Corinna’s signature City Tote handbag, a foldover style with a curved handle, also inspired copies. And a style of pants with a sewn-in belt appeared at Urban Outfitters within six months.
> “People who don’t necessarily know us, when they hear of Foley & Corinna, they say, ‘Oh, they’re the ones who always get knocked off,’ ” Ms. Foley said. “They are not saying, ‘They are the ones with the most amazing ideas.’ That’s not the sentence.”
>One could wonder, though, whether the copies have made more people aware of Foley & Corinna’s existence, even driving shoppers to see what the fuss is about. But Ms. Foley said that those shoppers would still prefer to pay $12 for a copied handbag than $400 to $800 for the original. And after the floral dress at Forever 21 was publicized, some customers returned the originals.

And later in the article, this bit:

>During their first year, Foley & Corinna sold $500,000 worth of clothes, a remarkable haul thanks, in part, to Ms. Corinna’s vintage business.
>That business thrives because most designers take ideas from the past, especially from vintage clothes, a fact that does not help the cause for copyright protection. Designers often send memos, for example, to vintage dealers describing what they are looking for each season, and so Ms. Foley and Ms. Corinna usually knew what trends were going to turn up.

In their paper, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, available here, Kal Raustiala and Chris Springman argue that the low level of IP protection for fashion designs has been politically stable for the past sixty or so years because, uniquely, the industry thrives best in a state of free appropriation.

It’s pretty clear that the value of clothes is basically determined by its social context and its relationship to trends. Having relaxed IP protection in the industry helps to accelerates trends and create more demand for designers to make new ones. As high-fashion clothes are replicated and diffused into the broader public, they lose their value. But fashion-conscious people (those with enough money at least), always want what’s hip and valuable, so this accelerated devaluing of designs constantly replenishes fashion designers with people who want to buy new clothes, despite the fact that their old clothes are still totally usable.

According to the paper, here’s how this works out for the industry in the long term:

>The house that sets the trend one season may be following it the next, and whether a particular firm will lead or follow in any given season is likely difficult to
predict. Thus, in the current system designers viewing their incentives ex ante are at least
partially shrouded within a Rawlsian veil of ignorance. If copying is as likely a future
state as being copied, it is not clear that property rights in fashion designs are
advantageous for a designer, viewed ex ante. And there is good reason to think that, in a
world with more than two designers, one is more likely, over time, to be a copyist than to be copied. Original ideas are few, and the existence of fashion trends typically means that
many actors copy or rework the ideas of some originator (or copy a copy of the
originator’s design). Some may originate more than others, but all engage in some
copying at some point—or, as the industry prefers to call it, “referencing.” Moreover, the
industry’s quick design cycle and unusual degree of positionality means that firms are
involved in a rapidly-repeating game, in which a firm’s position as originator or copyist
is never fixed for long. The result is a stable regime of free appropriation.

In case you are a visual learner, Public Knowledge put together this short video explaining the negative effects they think the bill would have:

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