Protecting fashion designers from copycats.

The law, lawyers, and the court.
May 13 2009 11:33 AM

The Squint Test

How to protect fashion designers like Jason Wu from Forever 21 knockoffs.

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Ruffled blouses, skirts, and dresses are in the stores this spring, and women are wearing them. But not everyone is wearing the same exact ruffled dress. For ruffles to take off, designers have to come up with scores of variations on them to satisfy the nuanced tastes of consumers at various price points.

If we used prevailing copyright law standards to ban design copies, however, we'd have a lot fewer to choose among. For books, music, and movies, "substantially similar" works as a legal standard because creativity is not inextricably intertwined with flocking toward a trend. Movies may cluster, but dozens with similar screenplays and settings don't pop up in the same season.

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Even with the narrower standard now on the table before Congress, we need to guard against the risk that nearly every riff on a fashion trend could become fodder for a lawsuit. Designers could be locked in endless legal battles about who came up with what. Originality in fashion is almost always a matter of complicated reinvention, a reworking of previous eras and contexts. Ralph Lauren, for example, has made his brilliant career re-creating the looks of the 1920s and 1930s. What he doesn't owe to the Prince of Wales or F. Scott Fitzgerald is hardly worth mentioning. The same is true, from designer to designer, within seasons. Designers—all of them—put together fashion shows by visiting trade shows organized by fabric suppliers, talking to department store buyers, and nosing around one another's ateliers. Ruffles aren't new. They're recycled.

But this doesn't mean that fashion designs are completely unsuited to copyright protection. The solution, practically speaking, is to enable the inspired-bys to keep at it while shooing away the knockoffs, which are the ones that reduce the incentives of fashion designers at all levels to come up with new designs. Some people will buy a new Jason Wu design. But if essentially the same dress is soon available at a fraction of the price, some will go for the knockoff, especially when cash gets tight, or simply decide not to buy the design at all, because the knockoff has made the design seem less distinctive.

Here's where the squint test comes in. The protection it offers against copycats would especially help independent designers, many of them American—the same designers whom, not coincidentally, Michelle Obama has championed. Several of them, including Jason Wu, went to Washington in April in search of support for reintroducing the fashion design bill. When emerging designers begin to gain recognition, they often don't have the money to fight knockoffs with expensive advertising campaigns that reinforce the authenticity of their brand. They also usually don't have the logos on handbags and accessories that enable the big-name designers to enjoy the protection of existing trademark law.

Stopping copycats does not mean depriving bargain buyers of fashionable clothes. What would the Forever 21s of the world do if they had to contend with the squint rule? They would have to become inspired-bys. Perhaps they would shift to the kinds of high-low collaborations that work for stores like H&M with Matthew Williamson and Target with Alexander McQueen. We may miss the easy availability of knockoffs. But we'd be trading it for better, broader design choice.

This piece also appears in Double X.

C. Scott Hemphill, a law professor at Columbia, and Jeannie Suk, a law professor at Harvard, are co-authors of an article out this month in Stanford Law Review, "The Law, Culture, and Economics of Fashion."