Fashion design copyright in the United States

The beginnings of copyright law began with editorial copyrights in the 1750s.[3] Since then, we have had extensive advancements within society that have called for legislative additions to the initial idea of what should and should not be copyrighted. In 1932 the Fashion Originators Guild of America unified in order to prevent further knock offs by requiring designers to submit their designs for cataloguing, and by “red carding” those stores and businesses that were found to reproduce previously submitted designs under their own name and for their own profit. By red carding these retailers, they essentially blacklisted stores to institute boycotts and dissolve the offending business. However, in 1941 their actions were ruled illegal through violating antitrust laws and monopolizing the competition and so the guild disbanded.[4] The issue continued to be under debate as designers through the years consistently felt blows in revenue as cheaper versions of their designs flew off the mass marketed racks. Attempts at creating a bill to combat these knock offs rose and fell, until various supporters grabbed hold of ideas to form a tangible and arguable legislation.

Fashion design copyright laws in Europe have been known as early as in the 15th century. French king Francis I [5] gave out specific privileges related to the production of textiles. By 1711, in Lyon, illegalities were already being defined in regards to fashion materials, and in 1787, in England and Scotland fashion designers had fruitfully pushed their needs for protection into basic legislation. In 1876 Germany began protecting fashion patterns as well as models, and in 2002 European regulation on designs that were new and provided an aspect of fresh character or aesthetic were brought under protection.[6] From 2004 to 2006 the “total production volume for clothing decreased by about 5% each year… [and by] 2006 the European union trade deficit for clothing was at 33.7 billion.”[7] These statistics show that while there are benefits of their advanced design legislation, the economic and external factors still hindered their industry growth in ways the U.S. can empathize with. As 2007 came to a close, WIPO, or the World Intellectual Property Organization, had registered twenty-nine international designs.[8]

In 1994, Yves St Laurent and Ralph Lauren went to court over a specific tuxedo dress that the accused had theoretically designed after a YSL version.[12] The ultimate outcome was the payment of $300,000 from Ralph Lauren to the House of YSL. While the court in question was in Paris, this shows the beginnings of public courts taking serious interest and incentive to protect designers from copying one another. A second example from 1994 took place in Chicago, where the company I.B Diffusion L.P. accused Montgomery Ward L.P. of knocking off a specific sweater design and mass-producing it to sell for themselves.[15] This case provides an additional example of American designers facing the challenge of competitors knocking off their designs.

The argument here describes the economic idea of competition. Without competition there leaves no room for businesses to strive for better, newer products in order to outsell each other (Fischer par. 2). When arguing against legislation, many lump copycat retailers and mass producers into this category of necessary competition. Through imitation of the original products, it “makes it available to a greater number of consumers.”[16] The fact that larger quantities of people have access not only to the product but also to knowledge of the product increases the original designers successful market base. In a roundabout method, imitation is type of advertising for the real design.

An argument put forth for this case is that few to zero customers are actually stolen through knock off retailing. Knockoffs are targeted at a market of consumers who would not be buying the original pieces anyway.[17] The degree of difference in price points from the original to the knock off means that the lower priced market consumers cannot afford the higher priced market products to begin with. In other words, designers and mass retailers cater to entirely different market segments that barely overlap. Not to mention, there is a certain amount of “piracy paradox”. When designs become mass-produced and so mass marketed, it causes market saturation to occur even sooner than it would otherwise.[17] This means that the consumers become familiar with the designs faster and faster, and so cause fashion cycles to also speed up. The time between introduction of a style and decline of a style is decreasing. This allows designers to sell different styles more often, and so increase their overall profit.