The copying of fashion design originals – “knocking off” or “affordable interpretation,” depending on your point of view – is a practice that designers may have grudgingly accepted in the past, when less expensive copies took some time to reach stores and only those consumers who could afford the designer-label originals could be the first to follow a trend. This practice is now costing designers dearly as more advanced technology makes it possible to see high-quality copies appear in stores before the original has even hit the market. While it has long been the practice of the American fashion industry to knock off European designs, American designers traditionally did not copy one another. They registered their original sketches with a trade group called the Fashion Originators Guild, an organization that urged retailers to boycott styles known to be knockoffs.[1] In 1941, the Supreme Court held that the Guild was an unreasonable restraint-of-trade;[2] the end of the Guild marked the beginning of the knocking off “free-for-all” that we are familiar with today began. It is now common for imitators to photograph the clothes in a designer’s runway show, send the photo to a factory (often in Asia) to be copied, and have a sample ready within a couple of days for retail buyers to order.[3] Since fashion collections are displayed in runway shows approximately four to five months before they are available to the public, this leaves the fashion copycat plenty of time to get the copies to stores at the same time, if not earlier, than the originals.
Designers claim that design piracy cuts into their longstanding franchise of exclusivity, lowers their sales volume, and ultimately removes incentives for creativity.[4] Sometimes the same department stores that carry the higher-priced designer version of a garment will also sell the lower-priced knockoff, often under the store’s private label.[5] Knocking-off is rampant in the fashion industry and even those designers who fume over being copied are not above doing it themselves.[6] Because of the speed with which designs can be recreated, it is not even always clear which designer created the original and which designer merely copied it.[7] This essay will explore how protection of fashion works fits – or does not fit – into the current intellectual property law framework in the United States. The overall organization of this essay is a systematic consideration of possible protection for works of fashion under copyright, patent, and trade dress (a trade symbol similar to trademark) law, as well as the limitations of these doctrines when applied to clothing design. This discussion will encompass not only the current state of the law, but also proposals for reform, such as an amendment to the Copyright Act to specifically protect fashion works. At the end, I will reconsider the desirability of extending intellectual property protection to works of fashion.
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