[Jewelry making - Article 00605] - [Orchid] Can fashion be copywrited?

[Lisa Bialac-Jehle]

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    Applies to jewelry too. Today's NYTimes.: 

    Can Fashion Be Copyrighted?
    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; 

    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." 
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