Issues Of Fashion Piracy Cultural Studies Essay

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It has become apparent now that the fashion industry is under a lot of strain with regards to copyright issues, or as it has become known "Counterfeit without the label" (stopfashionpiracy,online,2010).

At present Europe does have in place, rules and protection for the designers. This Intellectual property (IP) can allow the designer to own their creation, which then encourages further innovation and creativity. However even with this protection, high street chains like Top Shop, Zara and H & M appear to get away with this form of theft. As high street stores for years have been accused of knocking of prêt-a-porter wear.

Trademarks have always been copyrighted and designers have always loved stamping their signature's all over their brands, in order to protect its identity. These are mainly found on their luxury goods such as handbags, purses and belts. Designer trademarks include amongst many the distinctive Louis Vuitton LV and the Gucci GG logo.

Although these bags are in many countries can be found on the black market counterfeited, it is illegal to sell this form of imitation and heavy penalties are in place for those guilty.

This is becoming to be a huge problem in the United States as they have no copyright laws against fashion aperture. Fashion imitation or fashion piracy as they refer to it, is common practice. As soon as a collection is shown on the catwalk, the line can be legally copied and sold under a new label. In many cases these imitations are making it into stores before the original. However is it not about time that everybody has an opportunity to own a piece of luxury, not just the super rich and elite clientele these designers attract. Obviously not and that's why these huge designers are taking out legal action on these imitators as they are concerned that these cheaper copy's are deluding their brand as the workmanship and quality are of a poorer standard and designers do not want their brand associating with this, as they may loose their identity or customers.

Big businesses cannot afford to have allow this to happen as it costs money, jobs and livelihoods are at stake. Whilst the young and upcoming designers fear they need protection from this, as they do not have the resources and wealth to carry them financially through to the following season, if their designs are copied and they bear the brunt of forgone sales.

Tom ford, who was the creative designer for Gucci, however, liked his designs being copied, as it was a signal that he was doing something right and found it to be a form of flattery. However in an interview at the Norman Lear centre in 2003, on creativity and ownership he told the audience that at Gucci he was not worried by cheaper imitations, "as in fashion, a good steak and a bad steak are two very different things". (learcentre online,2003,pg52).

Nowadays fashion has become a motor that functions at high speeds. The cycle is continuous and designers are constantly looking for new ideas or revamping old successful ones. Coco Channel was only too aware of this and knew as soon as a collection was launched it was time to look for the next new look "Fashion should slip out of your hands. The very idea of protecting the seasonal arts is childish. One should not bother to protect, that which dies the minute it is born." (Learcenter pg31)

However, The Council of Fashion Designers of America (CFDA) are very much against this idea of just letting go. They believe that fashion innovation should be protected and are continuously fighting for justice. Their members that include over 370, consist of designers who specialise in men and women's wear as well as jewellery and accessory designers. They are a non-profit and charity fund raising organisation headed by the very successful and renowned Belgian born designer, Diane von Furstenberg.

In 2006, the CFDA travelled to Washington to discuss with senators and put into place The Design Piracy Probation Act protecting designers intellectual property. This would protect original fashion designs for three years from the date they were registered with the U.S Copyright Office. However in order for the designers to get this IP protection they would have to prove this design was an original and there was no other design similar to this within the apparel industry. Unfortunately this act was not passed by congress. The reason for this not being passed is that unlike music and films, clothing is considered to be ' a useful article' or too 'utilitarian' and unable to meet patent grants. However without this protection what incentive is there to a designer to create new innovative designs if anybody can so freely steal their creations and pass them off as their own. It could easily be argued that those designers who are producing these cheaper imitations are profiting from the true originators innovative ideas.

The CFDA is not the first organisation set up to try and abolish this form of design theft, the 'Fashion Originators' Guild' was set up in the 1930's in America. They had over

12,000 members, including designers and retailers and they took the idea of copying very seriously and 'red carded' any member who was found to be copying or selling copies. Other members then boycotted these offenders. However the Supreme Court struck down this Guild in 1941 due to tension amongst the members and concerns about it violating its own laws.

Although today, many designers are campaigning for copyright on their designs, there are a number of people who think the lack of copyright on clothing is part and parcel of the fashion industry and is good for business. Kal Raustiala and Chris Sprigman who are both well known professors and experts on counterfeiting and intellectual property, believe it is thanks to copying that the fashion industry has become so financially successful.

This 'Piracy Paradox' as it has become known is very much about how quick the fashion cycle moves due to this copycat nature in this industry. The majority of the fashion conscious consumers, do not buy clothing because their old clothes have worn out, they buy clothes to stay in with current styles and trends. Shakespeare must of known this well as he quoted in his play 'much ado about nothing' "fashion wears out more apparel than the man" (Shakespeare,2007, pg536). This is the very nature of fashion, as styles rise and fall and trends are set, the fashion forward consumers are hungry for the next new thing.

It has to be asked how can this be bad for business, copying surely generates the demand for new designs or give advertisement to the original. If the consumer was happy to be wearing the same jacket for two years as it was still very much 'in fashion', would the fashion industry be still booming.

To some designers it has made them up their game and given them a challenge to try and create something so difficult even the counterfeiters would have difficult to replicate. This surely must bring out more creative innovation amongst the design world. However it must be difficult to try and get a design patented when there is nothing new. Fashion is purely a revamp of old fashion but with a modern spin on it.

Although there has and always will be issues surrounding copyright in fashion, in August 2010 a new bill has been put forward to the congress called the Innovative Design Protection and Piracy Prevention Act (IDPPPA). This bill represents a compromise to the previous bill turned down in 2006. Although this act has not yet been approved many people are very sceptical about what impact this will have on the fashion world.

Some of the main changes from the previous bill are that a designer does not have to register there design's

Innovative Design Protection and Piracy Prevention Act. The bill represents a compromise as compared to its highly

. The idea is simple: If people can't profit from innovation, they won't innovate. So to encourage the development of stuff we want, we give the innovators something very valuable: exclusive access to the profit from their innovations. We're so bought into the logic that we allow companies to patent human genes.

Embracing copyrights

And companies love copyright. They love it so much that they persuaded Congress to pass the Sonny Bono Act, which extended individual copyright protections to the life of the author, plus 70 more years; and corporate copyrights to 120 years from creation, or 95 years from publication, whichever is earlier. That's an absurdly long time, and it belies the original point of patents. Does anyone seriously believe that a 40-year-old with a money-making idea is going to hold back because someone can mimic it 20 years after he dies?

At a certain point, copyrights stop protecting innovation and begin protecting profit. They scare off future inventors who want to take a 60-year-old idea and use it as the foundation to build something new and interesting. That's the difficulty of copyrights, patents and other forms of intellectual protection: Too little, and the first innovation won't happen. Too much, and the second innovation - the one relying on that first - won't either.

Which is why we have to be careful when one industry or another demands more copyright protection. "Intellectual property is legalized monopoly," says James Boyle, a professor at Duke Law School. "And like any monopoly, its tendency is to raise prices and diminish availability. We should have a high burden of proof for whether it's necessary."

Drug research esign piracy has long been considered a problem by some in the fashion industry and a boon by others. Other than trademarked brand logos, fashion design has primarily been in the negative IP space; clothing often considered a "useful article" ineligible for copyright protection or unable to meet design patent requirements. Supporters of protection believe fashion designs should be afforded the same protection that other creative industries, like music and film, are given. For years, many in the fashion industry have been pushing Congress to pass legislation that would give sui generis protection to fashion designs. The proposed legislation will leave designs created anywhere prior to enactment in the public domain.

On August 5, 2010, Senator Charles E. Schumer (D. NY) introduced Senate Bill 3728, the Innovative Design Protection and Piracy Prevention Act ("IDPPPA"), to give fashion design short-term protection. Similar to previous versions of the bill, S. 3728 seeks to amend 17 U.S.C. §1301 et seq. which currently provides sui generis protection to boat vessel hulls.

"Substantially Identical"

Like its recent predecessors, the IDPPPA proposes a short, three-year term of protection for new and original fashion designs. Protected designs are those with "a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs." Accordingly, designs that are "substantially identical" to protected designs are prohibited. The term "substantially identical" is defined as:

"An article of apparel which is so similar in appearance as to be likely mistaken for the protected design, and contains only those differences in construction or design which are merely trivial."

The challenge will be applying this definition. Specific factors will need to be determined to assess whether a fashion design is so "substantially identical" that it is likely to be mistaken for the original. Thus for protection, is a line for line copy of the design, cut, pattern and other features necessary to show that the copy is nearly indistinguishable from the original? What weight will design differences be given to determine whether they are merely trivial and infringing on the protected design?

Courts may look to other areas of law for guidance, such as trademark law. In determining whether trademarks are sufficiently similar, the marks are compared in terms of appearance, sound, and meaning. While the appearance of trademarks must be considered as a whole, certain features of a mark may be given more or less weight. In comparing fashion designs, will, or should, dominant design elements, or patterns be given greater weight to assess whether they are "substantially identical?"

"Non-Trivial"

Also new under the current Senate bill is that designers must prove their design is a "non-trivial" variation over prior designs. Does this mean a design cannot be inspired by a past design, or be a concept within the public amounting to a trend? Designers like to believe that their creation is completely unique, but most designers pull inspiration from the art, graphics, and patterns of past designers. Interestingly, factors that may not be used in determining the uniqueness of a design are colors and pictorial or graphic elements imprinted on the fabric. If the IDPPPA is enacted, courts will need to guide designers by identifying specific factors to help address whether design variations are unique and non-trivial.

Registration Not Required

The IDPPPA specifically excludes fashion design from §1301's registration requirement. Therefore, there is no initial determination by the U.S. Copyright Office as to whether a design should actually be afforded protection under the required criteria. Unlike boat hull vessel designs which are required to register, a fashion designer would make the initial determination as to whether their designs are "a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs."

A designer would indicate protection by marking designs as set forth under §1306; using the words "Protected Design," the abbreviation "Prot'd Des.," or the letter "D" with a circle, or the symbol *D*. Failure to mark a protected design will preclude an action for infringement before providing written notice of design protection.

Unlike boat hull designs, there is no rejection of registration to initially determine whether marking a particular design is inappropriate. While there is a penalty for false marking, a designer could under a good-faith belief continue to mark its designs as protected for the entire duration of the three-year protection period or until the design is successfully challenged in an infringement lawsuit. Where the design notice itself is sufficient deterrent for potential copyists who are unwilling to challenge such designation, there may be an over-inclusion of designs protected by the IDPPPA.

"Plead With Particularity"

Although fashion designs do not need to be registered under the proposed IDPPPA, the designer bears a greater burden at the time of enforcement. The IDPPPA calls for specific pleading requirements for cases of fashion design infringement; requiring specific facts establishing that:

the design of the claimant is protected;

the design of the defendant infringes upon the protected design; and 

the protected design or an image thereof was available in such location or locations, in such a manner, and for such duration that it can be reasonably inferred from the totality of the surrounding facts and circumstances that the defendant saw or otherwise had knowledge of the protected design.

There are only a few types of actions that call for a "plead with particularity" standard, common-law fraud being the most notable. Hence, while designers may make the initial determination of protectability, they will bear a heightened standard of pleading when enforci esign piracy has long been considered a problem by some in the fashion industry and a boon by others. Other than trademarked brand logos, fashion design has primarily been in the negative IP space; clothing often considered a "useful article" ineligible for copyright protection or unable to meet design patent requirements. Supporters of protection believe fashion designs should be afforded the same protection that other creative industries, like music and film, are given. For years, many in the fashion industry have been pushing Congress to pass legislation that would give sui generis protection to fashion designs. The proposed legislation will leave designs created anywhere prior to enactment in the public domain.

On August 5, 2010, Senator Charles E. Schumer (D. NY) introduced Senate Bill 3728, the Innovative Design Protection and Piracy Prevention Act ("IDPPPA"), to give fashion design short-term protection. Similar to previous versions of the bill, S. 3728 seeks to amend 17 U.S.C. §1301 et seq. which currently provides sui generis protection to boat vessel hulls.

"Substantially Identical"

Like its recent predecessors, the IDPPPA proposes a short, three-year term of protection for new and original fashion designs. Protected designs are those with "a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs." Accordingly, designs that are "substantially identical" to protected designs are prohibited. The term "substantially identical" is defined as:

"An article of apparel which is so similar in appearance as to be likely mistaken for the protected design, and contains only those differences in construction or design which are merely trivial."

The challenge will be applying this definition. Specific factors will need to be determined to assess whether a fashion design is so "substantially identical" that it is likely to be mistaken for the original. Thus for protection, is a line for line copy of the design, cut, pattern and other features necessary to show that the copy is nearly indistinguishable from the original? What weight will design differences be given to determine whether they are merely trivial and infringing on the protected design?

Courts may look to other areas of law for guidance, such as trademark law. In determining whether trademarks are sufficiently similar, the marks are compared in terms of appearance, sound, and meaning. While the appearance of trademarks must be considered as a whole, certain features of a mark may be given more or less weight. In comparing fashion designs, will, or should, dominant design elements, or patterns be given greater weight to assess whether they are "substantially identical?"

"Non-Trivial"

Also new under the current Senate bill is that designers must prove their design is a "non-trivial" variation over prior designs. Does this mean a design cannot be inspired by a past design, or be a concept within the public amounting to a trend? Designers like to believe that their creation is completely unique, but most designers pull inspiration from the art, graphics, and patterns of past designers. Interestingly, factors that may not be used in determining the uniqueness of a design are colors and pictorial or graphic elements imprinted on the fabric. If the IDPPPA is enacted, courts will need to guide designers by identifying specific factors to help address whether design variations are unique and non-trivial.

Registration Not Required

The IDPPPA specifically excludes fashion design from §1301's registration requirement. Therefore, there is no initial determination by the U.S. Copyright Office as to whether a design should actually be afforded protection under the required criteria. Unlike boat hull vessel designs which are required to register, a fashion designer would make the initial determination as to whether their designs are "a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs."

A designer would indicate protection by marking designs as set forth under §1306; using the words "Protected Design," the abbreviation "Prot'd Des.," or the letter "D" with a circle, or the symbol *D*. Failure to mark a protected design will preclude an action for infringement before providing written notice of design protection.

Unlike boat hull designs, there is no rejection of registration to initially determine whether marking a particular design is inappropriate. While there is a penalty for false marking, a designer could under a good-faith belief continue to mark its designs as protected for the entire duration of the three-year protection period or until the design is successfully challenged in an infringement lawsuit. Where the design notice itself is sufficient deterrent for potential copyists who are unwilling to challenge such designation, there may be an over-inclusion of designs protected by the IDPPPA.

"Plead With Particularity"

Although fashion designs do not need to be registered under the proposed IDPPPA, the designer bears a greater burden at the time of enforcement. The IDPPPA calls for specific pleading requirements for cases of fashion design infringement; requiring specific facts establishing that:

the design of the claimant is protected;

the design of the defendant infringes upon the protected design; and 

the protected design or an image thereof was available in such location or locations, in such a manner, and for such duration that it can be reasonably inferred from the totality of the surrounding facts and circumstances that the defendant saw or otherwise had knowledge of the protected design.

There are only a few types of actions that call for a "plead with particularity" standard, common-law fraud being the most notable. Hence, while designers may make the initial determination of protectability, they will bear a heightened standard of pleading when enforci

Design Piracy describes the increasingly prevalent practice of enterprises that seek to profit from the invention of others by producing copies of original designs under a different label. These duplicate versions then have the potential to flood the market and devalue the original by their ubiquity, poor quality, or speed at which they reach the consumer. Technological advances to the means of textile and garment production, as well as increases in the number of distribution channels and the availability of cheap labor in emerging economies have created serious challenges to the growth of fashion design in America. The Design Piracy Prohibition Act grew from these concerns, and was initiated with two main objectives: to protect both the established and the up-and-coming designers whose development, growth and success helps to support the $350 billion U.S. fashion industry; and to preserve intellectual property.

The Geoffrey Beene Foundation has made a financial contribution of $250,000 to support the CFDA's efforts to extend copyright protection to designers.

For more information of the

chains are bringing these designs to the mass market, its thanks now to the supermarkets and fast fashion chains like primark and peacocks that are making fashion accessible to almost everyone.

While in theory dress trade protection could be used by fashion designers to protect their designs from imitation, the reality is that many courts are hostile to the application of trade dress law to clothing. In fact, the Third, Seventh and Tenth Circuits have expressed their unwillingness to apply trade dress to product configurations in general, not just fashion design.[65] This unwillingness is partly rooted in the perceived conflict between trade dress protection and patent protection as applied to product configuration. For example, the Third Circuit found that "where product configurations are concerned, we must be especially wary of undermining competition. Competitors have broad rights to copy successful product designs when those designs are not protected by (utility or design) patents."[66] As one commentator observed: "For now, judicial views of trade dress are too hostile for trade dress to be an attractive alternative to either the confusion of conceptual separability or the uncertainty of design patent protection. ... This hostility appears to be primarily directed at product configuration trade dress."[67]

So where does this leave fashion works? Those in favor of stronger legal protection for fashion designs clearly see the current state of the law as woefully inadequate. As someone who has worked in the fashion industry in France, I found myself in sympathy with this viewpoint. In France, as in England, fashion designs receive much more protection than they do in the United States. The current French copyright system makes specific provisions for fashion works; this protection traces its origins back to the Copyright Act of 1793, which classified fashion as applied art.[68] In France, fashion - especially haute couture - is still considered more of an art form than of a functional way of clothing the body, which seems to be the more prevalent notion in the United States. I was somewhat surprised by the hostility to the protection of fashion works expressed by my colleagues when I presented this paper in our seminar. Their comments made me seriously re-examine my point of view.

As I consider now what degree of protection the law should provide against fashion design piracy, my main concern is how such a law would be implemented in practice. Fashion seems to be an industry particularly ill-suited to legal prohibitions against copying. Copying - or "borrowing" or "reinterpreting" - is prevalent at every level of the fashion industry. When a lower-priced designer knocks off a higher-priced designer's clothing, the copy may be a huge success because it offers more value for the price. But very often it is the higher-priced designers who are copying each other. For example, in 1994, Yves Saint Laurent was awarded $383,000 by a French court that agreed that Polo/Ralph Lauren had copied Saint Laurent's distinctive tuxedo dress.[69] But in 1985, Saint Laurent was fined $11,000 for copying a toreador jacket from designer Jacques Esterel.[70] Even thornier is the fact that very often, if not most of the time, it is impossible to know who came up with the idea in the first place. "Any claim to originality can be problematic today, as fashion has become increasingly derivative and designers all feed at the same trough."[71] It is not at all uncommon to find striking resemblances among the collections of different designers for the same season. It is obviously more than coincidence when this happens - the fashion world is a small one and the design process is porous. The convergence toward a small group of short-lived trends is the reality of the fashion industry today. When one considers the peculiarities of this industry, the reluctance of the courts and Congress to provide more protection for works of fashion becomes more understandable.

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