Even in 2016, fashion design continues to receive little protection in the intellectual property arena. While designers’ names and logos are protected under trademark law, the material items that they are attached to are not.
Countries high in the fashion industry, including France, have just as equal, full copyright protection over fashion as other artistic mediums do. However, in several countries including the US, brands must make do with the legal protections they are provided for limited aspects of fashion design, such as the textile print.
Between 1858 (when Charles Frederick Worth gained a widespread reputation for establishing the couture system) and the 1960s, the seasonal and top-down nature of the fashion industry and the time lag between an original design being premiered and knock-offs being quickly thereafter strewn together provided a certain level of protection against copying. Twice each year, Parisian couturiers dictated style to the elite, while department stores offered copies to the merely wealthy, and knock-off creators provided to the masses months later. Then, the process repeated itself.
In 1928, economist Paul Nystrom dissected the aforementioned cycle. Unfortunately, its role for setting the pace for fashion creation was replaced by the prevalence of creativity not only at the couture level, but at levels of all price points, which enabled the customer to have access to original designs rather than having to wait the typical length of time for knock-offs. Furthermore, over the past two decades, global copyists’ immediate access to runway images has made designers even more vulnerable. Consequently, now designers have no window to recover what other industries classify as R&D costs. Simultaneously, design pirates avoid the cost of hiring unique design talent, instead cherry-picking the most successful pieces from each season. Moreover, the density of manufacturing in China and other countries with little economic incentive to protect fashion designers has further exacerbated this issue.
The consequences of this systematic breakdown are incredibly detrimental, particularly to new designers. Established fashion houses are harmed by copying too, but to an extent, can hide behind the power of their labels, which are protected by trademark law. On the other hand, emerging designers rely on selling their products rather than their names; and those who steal these new designers products take everything but the logos, making the customer unaware that she is even purchasing a mimic.
The breakdown hurts consumers too. Emerging designers are having trouble breaking into the industry, which means fewer ideas entering the marketplace. Retailers in places that allow uninspired copying don’t offer consumers variety on popular trends, instead stocking the racks with cheaply made copies. Fast fashion has a legitimate role to play; however, the globe’s most successful fast fashion lines – Zara, Topshop – are located in countries with rigid protection for fashion designs. As a result, they are required to change recent designs that inspire their creations and thereby present options to consumers, or pay up when a knockoff comes too close to the original.
There is hope for designers. In the absence of global legal protection, several designers have developed self-help concepts to protect themselves, including utilising the power of the Internet against copyists through social shaming and public outcry. However, such methods only go so far. Some countries, including the US, have considered modernising their intellectual property laws to support fashion design. These conversations will only continue.
The industry’s current debate over whether to embrace direct-to-consumer shows may alleviate the disconnect between promoting styles that won’t appear in stores for six months and copyists’ exploitation of the traditional fashion calendar. However, while this new immediacy may hinder design piracy, it may also indicate a return to the old secrecy – when industrial espionage prevailed on Seventh Avenue. Even if attempts to reveal new collections only to trusted insiders effectively defeated copyists, the public benefits of a strong system of intellectual property protection, which would encourage transparency and creative exchange while allowing designers to reap what they sew, will be lost.