Handbags at dawn
Is piracy killing the fashion business, or is the new clothing copyright bill a corporate stitch-up?
A debate around the role of copying and piracy in the fashion industry started last year when law professors Kal Raustiala and Chris Sprigman published The Piracy Paradox, a compelling paper which makes the case that innovation in the fashion industry is driven by loose copyright laws that allow designers to imitate one another, thereby creating fashion trends. The idea is that more copying creates a quick turnover of trends, because as soon as a style reaches the mall (providing itâ€™s not dead), the early adopters are ready for a new one. Itâ€™s a very well written paper, which makes a very good point. But as I argue in the book, the good point it makes is about the freedom designers have to remix each otherâ€™s work, not make pirate copies.
This September James Surowiecki wrote about the paper in the New Yorker, using it to criticize the Design Piracy Prohibition Act, a bill currently being considered by Congress, backed by the Council of Fashion Designers of America (CFDA) that would give designers the power to copyright their clothes the way we copyright music, movies or books. Designers would be able to protect their overall designs for three years (not elements of their design, which would still be fair game for remixes), and designers could sue pirates for up to $250,000. Surowiecki doesnâ€™t think this is a good thing.
Susan Scafidi, author of the great fashion blog Counterfeit Chic hit back at Surowieckiâ€™s analysis in Portfolio, arguing that because of the intertubes, this process is now happening almost instantaneously, which is hurting the fashion industry, not helping it. â€œThe speed of the internet and other technologies allows copies to make it to the stores before the originalsâ€ says Scafidi. She writes:
â€œConsider the accessories designer who received an order for a belt from a large department store â€“ only to have the store place its larger reorder with a cheaper manufacturer. Or how about the jeweler whose work was admired by a buyer at a trade show and hoped for a sale, only to open the large company’s catalog months later and see an exact copy of her design? Maybe the dress designer who saw her dress praised in an online forum, only to have the next post recommend buying an exact knockoff elsewhere â€“ followed by thanks for the “tip”? Perhaps you’d be convinced by the handbag designer who actually received a wholesale order, only to have it canceled a few days later because the buyer found an exact copy of her original design elsewhere at a lower price?.â€
Diane von Furstenberg, the president of the CFDA, also responded on the letters page of the New Yorker with her own fashion statement, declaring that â€œthere is no such thing as the piracy paradox,â€ and that the proposed bill would support short-term protection for designers while â€œpreserving the flow of trends and styles at the heart of fashion design.â€
There may not be a piracy paradox here, but there is a remix paradox, it just doesnâ€™t sound as good. Thereâ€™s a lot of hot air around this subject, especially when it comes to the numbers. If this bill does protect struggling, unknown designers and still allows remixes to happen, then great. But how long would it be before big fashion houses were lobbying congress to have the protection period extended from three years to six to twelve and so on, as big media companies are in other areas? If the copyright periods stay short term, the bill seems like a good idea. But if copyright periods become extended, long term there is a danger this bill could hinder innovation in fashion, not help it. Over-zealous copyright laws can be just as dangerous as rampant piracy.
Whatâ€™s unique about this argument is that the fashion industry, Congress and everyone else involved in the debate all recognize that the creatorâ€™s ability to remix the work of others in original new ways is valuable, desirable and creates new innovations that benefit everyone. This is not the case in the business of music or movies. The fashion industry is a great example of how fair use and loose copyright create innovation, one other industries might benefit from imitating.