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.

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.

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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.

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.

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."

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