The Squint Test
How to protect fashion designers like Jason Wu from Forever 21 knockoffs.
Posted Wednesday, May 13, 2009, at 11:33 AM
In time for prom and bridesmaid season, knockoffs of Michelle Obama's Jason Wu inauguration gown will soon hit the stores. Companies that offer knockoffs—like Forever 21 or, in the case of the inauguration gown, ABS—make their money by closely copying fashion designers' latest offerings and selling the clothes at a far lower price. Thanks to factories abroad, digital cameras, and the Internet, copycats can get their wares on the sales rack just weeks after the original design has been unveiled. Check out this $40 knockoff of a $440 Foley & Corinna dress and this $28 version of $800 Chloé booties.
A second set of companies, like Zara and H&M, brings fashionable clothes to regular consumers but without closely copying the design of their fancy and costly brethren. Their clothes are usually not knockoffs but rather inspired-bys. They participate in the same of-the-moment trend but are noticeably differentiated from a particular high-end design.
Currently, both the knockoff and the inspired-by approaches to fashion are entirely legal. U.S. copyright law considers items of apparel "useful articles," which are not legally protected the way books, music, and movies are. But all this could change if Diane von Furstenberg and the Council of Fashion Designers of America get their way. During the last session of Congress, a House committee heard testimony on legislation that would treat fashion design like other protected areas of intellectual property, protecting original designs against copies that are "substantially similar"—the ordinary standard for other kinds of creative works protected by copyright. Last time around, the fashion design bill didn't pass. But its supporters are now bringing before Congress a new and improved version, and it stands a better chance.
It is easy to see why the big-name designers whose works are regularly copied would want protection. The famous fashion firms believe their profits are being undercut by imitators. The bill's backers say the only losers would be copycats, who are getting a free ride.
Some protection for original designs is a good idea—in fact, that's been the norm in fashion-conscious Europe for nearly a century. The problem with the fashion design bill proposed last term was that by broadly banning "substantially similar" designs, it lumped the inspired-by and knockoff makers together. This went too far. The recently reintroduced bill narrows the ban to "closely and substantially similar" designs. This change is a big improvement. The goal of a fashion design law should be to protect originality but not to limit creativity. To do that, we have to make space for the inspired-bys while stopping the knockoffs.
Happily, there is a simple way to do just that. Both kinds of companies make fashionable clothes. But only the knockoff copycats produce items that ordinary people would mistake for the original design. We have our own proposal for drawing the line between a knockoff and an inspired-by: the squint test. If you have to squint to see the difference between a copy and the original, something is wrong, and copyright protection should kick in.
Inspired-bys deserve more respect than knockoffs because they help us resolve our warring fashion impulses. The first impulse is the human tendency to flock toward a trend. The second is the equally strong desire to stand out. Most of us don't want to look like we got dressed in a different decade, but we also don't want to wear the exact same outfit as another person to the same event, whether it's a casual party or an inaugural ball.
C. Scott Hemphill is a law professor at Columbia.
Jeannie Suk is a law professor at Harvard.