Thursday
28Sep
H.R. 5055
Thursday, September 28, 2006 at 06:59PM 
A friend of mine forwarded me this article “Fashion Has No Owner” by Albert Esplugas and Manuel Lora, from Lew Rockwell's Libertarian website. Leaving out the Libertarian politics, the article brings up some interesting discussion about H.R. 5055 – a bill in Congress concerning copyright protection for fashion designs. Now I'm not a lawyer (although I know some read this site - so please leave comments,) nor am I in any way involved in government or the political process. So, I have a question: Does anyone in the fashion world know about this? Because I can tell you that they'd laugh. Once they'd stop laughing, I'm sure the panic would set in. H.R. 5055 proposes a creative antithesis to the fashion industry by making it illegal for designers (professional & amateur alike,) to borrow and adapt ideas from each other. The bill is sponsored by Representative Goodlatte of Virginia, and while I’m sure he is a kind-hearted soul trying to do his best for his constituency, I honestly have a hard time believing that any of his constituents are fashion designers.
Even one who is half-blind, living under a rock, with no exposure to any form of popular culture or style zeitgeist would be able to tell you that fashion moves in a constant cycle, with designers continually borrowing from each other. Season after season, fabrics, colors, pocket shapes, style lines, embellishments, closures – everything gets milled around, rehashed and re-labeled. Trends, marketing, themes – all of them run parallel and develop dialogues across design houses each season. Oh, you’re doing a vintage-inspired circle skirt too? It is true that sometimes it makes things in fashion a bit boring, yet trends are natural aspects of sociology, and like fashion itself, you can’t stop ‘em. Certain aspects of fashion aren't even "design," per se, they're just trends of shape, cut, color, etc., and most of these aspects have been around before - maybe a generation ago, or maybe just a few months ago. The reason they seem to be "everywhere" at the same time is because they are - designers all read the same forecasts and then interpret the trends in a way that's true to their aesthetics. How would you protect this kind of development? The very idea that someone calling themselves a “fashion designer” would want to stifle this interchange of creativity, halting the very stylistic building blocks of their trade, is ludicrous. Perhaps fashion moves more slowly in Virginia?
H.R. 5055’s summary states: “Extends the definition of infringing article to include any article the design of which has been copied from an image of a protected design without the consent of the owner.” This so-called “protection” attacks the very roots of the fashion system of trickle-down/trickle-up styles. High fashion works hard to keep the pulse of street fashion, while the youthful stylemavens raised on MTV move so fast on modifying haute designs that they’re virtually eliminating the lag in time-to-market. The “cool factor” changes from moment to moment, and while fashion designers gamble that their offerings (fingers crossed!) meet the changes, they know that the change cannot be stopped or “protected” from adaptation. This bill begs the question: If you don’t want people copying your ideas, why are you a designer?
The foundations of the fashion industry are built upon designers riffing on the ideas of other designers. This interchange leads to new designs, new shapes, new methods, and around again the wheel goes. Fortuny borrowed from Poiret who competed fiercely with Chanel. Dior’s New Look led right into Claire McCardel’s “coordinated separates” with a similar shape. Balenciaga and Schiaparelli led into Yves Saint Laurent, and then there’s the 1980s-1990s cadre of Calvin Klein, Giorgio Armani, Donna Karan, and Ralph Lauren. Today, we see up-and-comers Peter Som interchanging with Derek Lam and Zac Posen, whose ladylike penchants are all derived from Marc Jacobs and Vera Wang.
As a part of my job, I am well-versed in the ins and outs of copyright infringement, counterfeiting (creating & selling a product with the intent to de-fraud,) and knock-offs (creating & selling a product meant to be very very “similar” to the original.) “Counterfeiting is wrong. It’s just wrong,” as Marc Jacobs told Oprah Winfrey during an interview in March, however he did admit that it was “flattering.” Let’s get one thing clear though, protecting products against counterfeiters is one thing, protecting designs from their natural process of adaptation and re-interpretation runs counter to the entire industry – something Mr. Jacobs keenly knows from experience.
Marc Jacbos understands the cycles of fashion perhaps better than any designer of the modern age. (Any of those constituents in Virginia ever heard of “the grunge look?”) His designs are the hub of all trickle-down/trickle-up fashion today – his runway designs are clamored after by socialites and celebutites, whose young fans ape them, create them from scratch, or find them in the raw at Forever 21, H&M, and their local thrift stores. (This could also have to do with many Marc Jacobs designers leaving their designer desks for the mass-markets of Gap, Inc. and Target.) And then Mr. Jacobs keenly observes the young ladies of greater America, does some sketches, and re-works the very things they’re already wearing into next-season’s must-haves.
That’s how fashion works. H.R. 5055 is clearly missing the point.
Reader Comments (2)
You wrote this some time ago and I don't know what you have heard from other fashion designers regarding this bill since - but as far as I can tell, it has received support from some in the industry - particularly those who are still struggling to make a name for themselves. You can check Jeffrey Banks' testimony in support of the bill online. I also refer you to two articles from the Wall St. Journal - one that's an interview with DVF from Sept. 8 2006 where she discusses her views of copying and the fashion industry (among other things) and another one from Sept. 11 2006.
Fashion is definitely not just about copying or borrowing - even though these things have been important to the industry as far as commercial concerns go. Also, the bill speaks more to outright copying than it does to borrowing an idea for a design and innovating it - which happens more often than not, and seems to be the type of copying you speak of.
I don't think HR 5055 misses the point of how the fashion industry works. It just observes some other interests that are also quite important to the industry beyond promoting a trend.