What's the Role of Intellectual Property
in Fashion Design?
Design patents, pioneered in the late 19th century to address advancements in industrial manufacturing, create a legal protection for "any new, original and ornamental design for an article of manufacture." Put simply, a design patent protects an item's unique and novel "look."
But recently, design patents have been at the center of a number of lawsuits involving high-tech products. The most notable recent example is the "look" of Apple's iPhone graphical user interface, or GUI, which was awarded protection because of its "new and not obvious" design elements, allegedly "knocked off" by the Samsung Galaxy. Because of similarities in color, look and feel, a court awarded Apple a 14-year span of protection against any similar GUI that shared the iPhone's unique user experience, characterized by soft colors, blunted lines and animation.
The recent expansion of consumer fashion -- and the booming industry in designer "knockoffs" peddled by discount retailers like Forever 21, H&M and Zara -- has caused concern among designers, however, that their hard work in developing ready-to-wear looks for a clamoring marketplace is being co-opted by sellers who steal designs and manufacture pocketbook friendly versions that are indistinguishable from their originals. Celebrity designers like Diane von Furstenberg, who pioneered the iconic "wrap dress" design that has populated the front windows of work-wear stores for decades, shoe kingpin Christian Louboutin, and indie darling Alexander Wang have all launched efforts to protect work they consider to be their property. Diane von Furstenberg, in fact, is one of the forces behind a measure in Congress to extend copyright protection to fashion design: an unprecedented change in the way American industry does business.
Like any industry, the fashion industry is a hotbed of technological development. We might shun more recent developments, like leggings for men or the return of the iconic "Hammer pant" that bags at the waist and thighs and narrows at the calves and ankles, but any student of fashion's history will tell you that fashion's timeline is a story of revision, engineering and design that has existed since man sewed together the first fig leaves to protect his modesty.
But an extension of copyright protection to mimic that provided by design patents may not be the protection designers are looking for, and certainly not in such a crowded ready-to-wear market. First of all, the fashion industry's top designers do not exist in a vacuum. Fashion is an inherently self-referential industry and most, if not all, of today's notable fashion figures have built on the work of those who went before them. They've created their clothing from blueprints laid out by fashion's earlier greats: Givenchy's little black cocktail dress, Chanel's iconic boucle suit and quilted shoulder bag, Christian Dior's feminine mid-century silhouette, Louis Vuitton's pioneering fabric choices, among others. Fashion's biggest influence is, by far, the past.
Instituting a regime of fashion copyrights would force new and upcoming -- and existing independent -- designers into an endless cycle of litigation as they work to improve and re-engineer the past, and to prevent claims of infringement from being leveled at any design that borrows any element from an existing garment, no matter how minor. Chilling creativity in the fashion industry, as copyrights would do, would stagnate an industry that places an incredible value on its own history and ignores that even small designers are able to create a foundation on which to build a fashion empire.
Of course, it is not as if much of what passes for innovation in the fashion industry is true innovation, anyway; design details on a purse, a color on a shoe or a novel take on slacks or a dress are hardly the same as a new form of garment, altogether.
With any field where constant redevelopment and redefinition is necessary to progress, an expansion of intellectual property can have a demonstrably cold effect on innovation. Fashion is but one example. In order to make technology newer and better, it is necessary to build on the work of the past, and that includes design elements that give certain technological innovations their personality. When society looks to those in the field of innovation to "build the better mousetrap," they are implying that the ones that came before were somehow inadequate to their needs. But if a designer were barred from improving on the mousetrap entirely because of a patent or copyright that protected esoteric and cosmetic elements, and were forced to build the initial invention from scratch -- or worse, were required to endure years of tedious litigation over the minor details -- innovation and development would take much longer. That's something that no firm can afford in this age.
Expanding the availability of design-based intellectual property would only hold back the field of fashion, as expanding the use of patents and copyright in any field would inevitably slow that field's forward movement. While knockoffs do have some impact, the quality and design of even the best knockoff is visibly inferior to the real thing. Let consumers continue to purchase discount versions -- they are not fooling anyone -- and focus on making fashion better.
Emily Zanotti is an associate policy analyst with the R Street Institute. This piece originally appeared on the R Street blog.