“If players like Louis Vuitton and Gucci have their hands full protecting their intellectual property, then what chance does a young designer have?” said Shirley Cook, co-founder and the first CEO of Proenza Schouler. Perhaps, a response to this could be found from how rising designers view their intellectual property (IP) rights.
The main issue is that designers typically only become interested in their IP rights when things go wrong or when an investor comes in. This is essentially a consequence of insufficient awareness about IP in the fashion industry. IP rights in the fashion industry should be perceived as execution of a more elusive purpose of recognizing the creator and not just as protection against bootlegging.
Gary Assim, partner and IP specialist at Shoosmiths, a London-based law firm, argues that counterfeiting leads to twofold damages: It withholds the designer the legitimate acknowledgment as the original designer. It also deprives the designer of the profits from the business of their merchandise, which would frequently have been the consequence of a substantial examination and expansion investment. Thus, the outcomes are predominantly distressing for evolving designers, for whom every sale matters.
(A) Campaigns Against Design Piracy
In the United States, fashion designers are left powerless and vulnerable alongside increasingly unflinching bootleggers, as the design patent system has prohibitive application charges, long procedural lapse of time and a bizarrely excessive standard of invention. A campaign to remedy this disparity and a bill, which seeks to pioneer design protections analogous to those, has been proposed by the Council of Fashion Designers of America (CFDA), known as the Innovative Design Protection and Piracy Prevention Act (IDPPPA).
Susan Scafidi, professor at Fordham Law and Director of the Fashion Law Institute stated that this act has been proposed to protect burgeoning and independent fashion designers who struggle to recognize profit on their creative asset. However, the IDPPPA Act takes a very narrow approach as it just protects unique designs – so that are new and distinguishable. So, what happens to the “substantial identical” requirement which can have a very broad interpretation by the Court. So, when the IDPPPA is passed, the copycats can make little tweaks and can claim protection or get away with infringement charges.
(B) The United States Supreme Court and Design Piracy
In the fashion world, a recent landmark case (Star Athletica v. Varsity Brands) judgment has the potential to resonate in the industry for years to come. The Star Athletica case a.k.a Cheerleader uniform case before the US Supreme Court had broader questions ranging from financial implications to the fashion industry to the meaning of clothing.
Justice Stephen Breyer even said that every dress cannot be copyrighted just due to difference in design, because, that will double the price of women’s clothes. A design has a particular utilitarian function that varies with each case and as Justice Breyer pointed romanticizing about dress, “The clothes on the hanger do nothing…The clothes on the woman do everything and that is what fashion is all about.” Hence, fashion serves a purpose that’s portrayed through different designs and, this is what makes design a special artwork full of skill, which needs to be copyrighted. This judgement by Supreme Court allowed the cheerleading uniform to get copyrighted, and brought a sheer confidence in the minds of the designers to create work without worrying about design piracy.
Now, it is often seen that emerging designers don’t get involved in an already costly procedure and tedious task of going to court. Instead, the burgeoning designers effortlessly acquire the profit of their IP by preferring to collaborate with major retailers such as Target and H&M.
All in all, in an ever-changing world where piracy has itself become a “fashion,” it’s necessary to have some strong counterfeiting regulations. Yet, copying has been a norm since centuries in the fashion industry, for its success. A design is generally copied, only if it’s trendy or suits to the recent trends that can increase financial output.
So, copying creates trends and trends sell fashion, which is a booming figure for the fashion industry. However, design piracy does not lead to downfall of fashion industry entirely, although certainly a downfall to recognition to the owner of the design. So, it might be safe to say this is Piracy Paradox!
Krati Jain earned her Master of Laws (LLM) in Intellectual Property from George Washington University Law School. She also has bachelor’s degree in Psychology & Human Resource Management (B.Sc Hons) and has earned her first Law degree (L.L.B.) from British universities in the UAE and UK. Krati is passionate about fashion law and is interested in advancing sustainability and ethics in the fashion industry. Also, she is an ardent cricket player and loves to try new cuisines.