Friend Friday: Copying in the Fashion Industry (is imitation the sincerest form of flattery?)

This week's Friend Friday topic is "Copying in the Fashion Industry." The topic is especially timely because their is currently a Bill, entitled the Innovative Design Protection and Piracy Prevention Act, for consideration before Congress.  And the rumor is - the bill will likely pass.

As you all know, I like to begin each "Friend Friday" with a bit of a history lesson, so let us flash back to the 1930s for a moment.  Yes, the 1930s.

The Fashion Originators Guild of America was established in 1932 by a group of American fashion manufacturers who were alarmed by the number of copies and cheap knockoffs entering the marketplace.  This 1936 Time Magazine article illustrates that copying was definitely a prevalent problem in the 1930s. The article states that: 

"by the early Depression years it had gone so far that no exclusive model was sure to remain exclusive for 24 hours; a dress exhibited in the morning at $60 would be duplicated at $25 before sunset and at lower prices later in the week. Sketching services made a business of it; delivery boys were bribed on their way to retailers." 

Members of the Guild worked together to monitor retailers and keep track of original designs. If it was discovered that a particular retailer was selling knockoffs, they were "red-carded" and boycotted by Guild members. The only catch? The protection of styles did not extend to dresses priced lower than $16.75 wholesale (the minimum established price of most Guild member dresses).

According to the original rules of the Guild, retailers were allowed to establish for themselves which dresses were copies and which were not. As long as a retailer did not sell copies of high-end dresses, members of Guild would continue working with them. This began to change in 1936, when the Guild issued a new "declaration of cooperation" to retailers, stating that retailers could no longer sell ANY dresses considered to be copies, regardless of price-point, and that the Guild's professional shoppers had full authority to determine what was/was not a copy. As illustrated in the Time article mentioned above, this led to the Guild frequently clashing with its partner retailers:

• In April 1936, a Guild investigator visiting Philadephia's Strawbridge & Clothier Department Store came upon a dress she determined was a copy. She demanded that it immediately be removed from the floor and that she be told the name of the manufacturer. Store managers disagreed; they did not feel the dress was a copy, and therefore refused her request.  Per Time Magazine, "two days later all Guild manufacturers received a small pink card informing them that the department store had been guilty of DEFINITE REFUSAL TO COOPERATE. As penalty, Strawbridge & Clothier's orders were no longer to be filled."
  
  

• The article goes on to say that "Within a few days much the same thing had happened at Bloomingdale's in Manhattan and at R. H. White Co. in Boston, which is owned by Filene's. All three stores are members of Associated Merchandising Corp., which was founded by Lincoln Filene in 1916 to give leading department stores throughout the country a Manhattan centre for style and market information, later engaged in co-operative buying. By the middle of last month all but four of the 20 members of Associated Merchandising Corp. had been "red-carded" by the Guild." 
  
  

  

  Lincoln Filene

• This finally culminated with Wm. Filene's Sons Co., the grandfather of Filene's Basement, suing the Guild for conspiracy in restraint of trade in March 1936. "Filene's complained that the Guild was seriously interfering with its spring showings by prohibiting manufacturers from shipping orders made even before the store had been red-carded. General charge was that Guild members had "conspired" to monopolize the dress industry and to maintain their monopoly by blacklisting recalcitrant retailers and laying heavy penalties on manufacturers who broke the rules." 

Although Filene's lost the suit, the damage was done. Shortly thereafter, the Federal Trade Commission charged the Guild with violating the Sherman Antitrust Act and issued a cease-and-desist order. The Guild fought back but ultimately lost the case when it reached the U.S. Supreme Court in 1941.

Following the Supreme Court’s decision, the former head of the Guild, Maurice Rentner, went to Congress and argued that, without copyright protection for designers, the fashion industry would flounder and die. Congress did not respond to his lobbying, and the industry has flourished for decades.

Nevertheless, the subject of fashion copyright and intellectual property laws continues to come up again and again.

Johanna Blakely's Copyright Flow-Chart

In 2006, a bill called The Design Piracy Prohibition Act was brought before Congress. It did not pass.  In 2007 a modified version was again brought before Congress.  It too did not pass.  A new version of the Act was introduced in 2009, with several designers, including Narciso Rodriguez, Thakoon Panichgul, Jason Wu, and Maria Cornejo, lobbying in support of the bill.  It too did not pass.  (Click here for an interesting read on the potential negative effects that could have occurred if the bill had passed in its original format.)

Today, this Bill has been reintroduced as the Innovative Design Protection and Piracy Prevention Act.  It is backed by both the "Council of Fashion Designers of America" and "The American Apparel and Footwear Association."  According to ApparelNews, the new bill proposes a copyright-protection period of three years and eliminates the former requirement of registering designs with the Library of Congress.  It also includes at at-home sewing exemption.  

The text of the proposed law states: 

“In the case of fashion design, a design shall not be deemed to have been copied from a protected design if that design is not substantially identical in overall visual appearance to and as to the original elements of a protected design; or is the result of an independent creation.”

Although signs seen to indicate that the Bill will pass this time, opponents argue that both U.S. manufacturers and aspiring designers will suffer due to the constant threat of litigation which will hang over their heads as a result.

Expert Johanna Blakely goes into great detail discussing the harm the bill could do here.  If the bills passes she fear that "consumers will pay higher prices (someone has to pay those legal fees) and they won't have the same access to the plethora of knock-offs that allow them to participate in global fashion trends without paying aristocratic prices."

Ultimately this leads to the question: in the long run, will the bill do more harm than good?

Keeping that in mind, let's look at today's Friend Friday questions:

1. Which side do you take: copycat designs are a way for the average consumer to stay current and wear runway styles without breaking the bank OR Copycat designs take business from the designer and cheapen the value of their work. Explain.   

I think that we are talking about two different types of consumers here: the people who can afford designer pieces, and the people who can not.  My belief is that, ultimately, a designer will lose little - if any - business due to copycat designs.


Most of the individuals who shop for designer-inspired pieces at the H&M, Forever21 and Zara's of the world could not afford to purchase the "real" thing. They can afford the low-end mass market pieces, not designer pieces.  Therefore, a designer would never see a profit from them.

You can't lose something you never had to begin with.

Meanwhile, there will always be individuals who are ready, willing, and able to pay a considerable premium to own the "real thing" instead of imitations.  Who knows, they may also buy pieces from a retailer like H&M here and there, but they will also continue to buy the real brand name.  Going back to the topic of conspicuous consumption for a second: the "real thing" gives status.  The imitation does not.

As for cheapening the value of their work? I don't think so. I believe copycat designs help define fashion trends.  A particular item is often deemed fashionable precisely because of its high rate of copying.  That is when it becomes a "trend."  

Every person - whether they are a musician, actor, entrepreneur, artist, author, or plain old stay-at-home-mom, is inspired by something.  Designer's are no different.  Their inspiration might be in the form of a vintage magazine, an old museum or newspaper archive, classic films, vintage patterns, or the current runway collection.  It might be in the form of grandma's old dress.  But the great designers take that inspiration and create something completely new from it.  

These designers create something new, ultimately renewing the industry over and over again as one trend dies and another is born.

Note: There is a big difference between copycat and inspired-designs, and flat out counterfeit pieces. Counterfeit pieces are illegal and should not be sold.

2. Sometimes we do things, even if they are unethical or illegal (downloading music for free, watching full movies on YouTube). Do you think it is unethical for a designer to copy a vintage piece, make it current and sell it?

It depends on your definition of "copy."

If you mean copy, as in fully reproduce, with no alterations at all, and claim as their own design?  Yes, it is unethical.

If you mean copy, as in reinvent?  Absolutely not.  As I stated above, I think vintage pieces are a great source of inspiration for designers.  

What if the person who invented, for example, stiletto heels, leggings, the pinstripe suit, the first pair of jeans, the brassiere, or the tank top had copyrighted their ideas?  What if no one had ever been allowed to reinvent those?

3. Would you buy an items that is a very well done copy of a runway garment if it fell within your budget? 

Possibly. It depends on the item.  I would never buy it if it was a counterfeit reproduction.  But if it was a well-made, "inspired-by" design, why not?  ABS dresses fit this category.  So do dresses by Faviana.  

However, I am more inclined to buy a piece that is inspired by a runway garment than one that is a blatant copy. Like, say Forever 21 pieces.  They tend to be really, really is guilty of a lot of UNinspired copying.




Then, of course, occasionally the opposite happens, and an A-list designer copies someone lesser know:

4. According to the fashion laws, at least in the US, apparel design is seen as too utilitarian to qualify for copyright protection. Would you think this is detrimental to the industry or beneficial.

Ultimately, I am of the belief that it is beneficial.  The fashion industry has thrived for decades without this type of copyright protection. 

In July of 1947, Leon Bendel Schmulen, of Henri Bendel department store-fame, told the New York Times that copying was “no danger to the business” and a “natural consequence of fashion.”  He even went on to say that "[b]y the time a design of ours is copied in the cheaper dress lines, it’s probably time for it to go.”

That is pretty much in line with everything I've typed here so far.  I believe the existence of low-priced retailers like H&M helps spur designer innovation, segment the marketplace, create trends, create demand, and actually increases the reputation of top designers.  No one wants to copy a designer that isn't respected. 

Professors Kal Raustiala and Christopher Sprigman, both counterfeiting and intellectual property law experts, believe that the success of the fashion industry relies on "induced obsolescence."  This theory suggests that in order for the fashion industry to keep growing, customers must become bored with the current trends and buy the next big thing.  The cool kid doesn't want to wear what everyone else has - they want something new.  Earlier this year, they told the New York Times that copying is what helps create these new trends: 

"The interesting effect of copying is to generate more demand for new designs, since the old designs—the ones that have been copied—are no longer special. The overall result is greater sales of apparel. We call this surprising effect the “piracy paradox.”

They also state that the philosophy behind intellectual property law suggests that there must be evidence of systematic harm throughout any industry looking to protect its intellectual property, and in the case of the fashion industry, there simply isn’t enough harm across the board.  Instead, as I've shared above, the lack of copyright actually seems to be helping the industry.

Why have so many A-list designers started to knock-off their own creations with retailers like H&M (hello, Lanvin!), Target, Topshop, and even Kohls?  Simple: so they can expand their own clientele and brand by offering a variety of products at vastly different price-points.  If they believed offering these items would hurt their brand they wouldn't do it.

Most recently, a European Union funded study out of the UK suggests that even counterfeit reproductions are *gasp* harmless to the industry!  If we are not taking into consideration that other ramifications of producing and/or purchasing counterfeit items (child labor, funding terrorism, etc.), then it appears the negative impact is negligible.  Unfortunately, in the case of counterfeit items, the additional ramifications I listed above are extremely serious.

Ultimately, there are some serious offenders when it comes to copyright infringement.  Counterfeiters, but that is already illegal.  And companies like Forever 21 who really specialize in some blatant rip-offs.  But intellectual copyright has to do with protecting a whole industry, and in this case, the industry doesn't need protection.

Note: Raustiala and Sprigman are both opposed to the new Bill.

5. Own up… share the things in your closet that is a knock off. You know those things you got in China Town, on the streets of New York, or where ever.

I have two.  A Louis Vuitton Monogram Audra bag and a unknown PRADA knock-off.  And you know what? They both suck.  I bought them when I was a poor college student visiting New York.  


I was so excited that they took me into the "secret" back room that I bought 2 bags because I felt like I was in some special club.  Too bad I can tell the difference between the bags I bought and the real thing - after that trip, they never left my closet.  But I still think getting invited to the "secret room" was exciting.

Hey - at least it didn't come from the secret knockoff garbage bag!

To see what other bloggers are saying about this topic, click here.

For more info on ModlyChic's Friend Friday series, click here.

All images from Google Images.