copyrighting

[faust]

page 4

In Lawrence Lessig’s book Free Culture , he provides numerous examples of legal battles between the proponents and the opponents of the copyright laws. In historical order, he starts by describing the 18th Century copyright war between the English publishers, who artificially monopolized certain classic works of literature, and the Scottish publishers, who wanted to bring the prices down and cut in on the competition4. He then continues to the legal battles and the copyright reforms of today. Two things should be noted that put the “protecting the artist” argument in perspective. First, many of the artists themselves seem uninterested in waging a legal battle. The parties eager to keep the copyright law in place, are those that are first and foremost interested in profiting, and not in artistic expression. Second, the extensive lobbying of the groups interested in profiting from creative expression, has led to unprecedentedly powerful copyright laws. As a result, the recording industry, the film industry, and the publishing industry have become a legal minefield and a system of paid-for allowances for almost anyone who wants to use copyrighted material in his work. Such climate is hardly conductive to creativity, and instead of protecting the artist, if often handicaps him. As a matter of fact, one of the widely admired designers, Martin Margiela, made his name by a technique called deconstruction, where he would take two old garments apart and create a new one out of them. The artistic motive is to bring life to old forgotten garments, and to transform them into a new one, thus putting a different perspective on how we view the clothes. To do something similar in the world of poetry, for example, would require one to see if the poems are copyrighted, to locate their authors and publishers, ask their permission, and, if granted permission to use the poems, probably pay high royalties. If these copyright laws were to be extended to cover fashion design, the power players there could naturally demand the same strict and incredibly long (95 years after death of the author in some cases) copyright terms; it is therefore
reasonable to expect the same problems in fashion that now plague other areas covered under intellectual property law.
So far, the fashion world has been spared from strict intellectual property laws. Lack of the big business power players, up until now, was a major reason for this. Historically, creators in various artistic spheres have been exploited by those who owned the means of production; writers have been exploited by their publishers, musicians have been

 

[faust]

page 5

exploited by the record companies, and actors have been exploited by the film studios. This did not exist in fashion until recently. The designer used to (and still largely does) stand not only at the helm of his studio, but also at the helm of production. The designer negotiated the mills, the factories, the costs, and other business aspects. If it wasn’t the designer, it was a designer’s assistant or a partner. This way, the designer had not only creative, but also business control. He was not merely an employee with a high qualification, but a business owner. The designer worked to both sustain himself financially and keep himself artistically free from maximization-of-profits pressure. In the late 1990’s, the landscape has changed through a series of acquisitions of small firms by the bigger firms with financial backers who are hardly interested in the artistic side of fashion. There emerged several conglomerates that now control a substantial portion of the fashion design market. Such companies either buy the brands outright, or lure young talent -- always with promises of freedom of artistic expression that often do not materialize. There are constant complaints voiced of creative stagnation and lack of creative control in the big firms, whose first and foremost function is to sell. Most notably, the late rift over lack of creative control resulted in ousting of the two iconic designers, Helmut Lang and Jil Sander (who quit, then was lured to return, and quit again after one year) out of the companies that bear their names. Both designers had signed a noncompete clause. Even when the noncompete clause ends, these designers can no longer put their names on the label, because the Prada Group owns their names. In such a situation, it is hardly imaginable that these two incredibly influential designers will want to design again (for comparison purposes one may imagine David Bowie being fired by the record company that retains the rights to his name).
There are several other aspects peculiar to fashion that address stifling of creativity and lack of substance behind the industry’s big players’ reasons for garment copyright laws; the temporal aspect of producing a collection, the temporal aspect of the garment itself, the cost of making a garment, and the general ethical climate of the fashion industry.
There is a temporal aspect of fashion that makes the designer’s creation a short lasting one, and at the same time drives his creativity along. Because of the changes in the weather, a designer must produce two collections a year, a winter and a summer one. On the one hand, it puts a lot of pressure on a designer; on the other hand it allows him to experiment with different themes and create something new in a six-month period.

 

[faust]

page 6

ashion designers themselves often resort to same practices;

"Fashion designers frequently visit Gallagher Paper Collectibles in Greenwich Village to pour through astounding selection of vintage fashion magazines, looking for inspiration for next big fashion idea; it is no longer shocking to learn that fashion designers do not design so much as swipe from fashion industry5 ."

Also, there is an issue of trends that commercially oriented high fashion houses religiously follow. The irony here is obvious, instead of setting the trends, these companies do what the numerous trend forecasting agencies tell them. When a mass market chain company follows suit, however, the fashion houses accuse them of copying their designs. The answer to such hypocrisy is frank and simple;

"... Catarina Midby, a spokeswoman for H&M, said she was perplexed by such [stealing designs] comparisons. “Surely, we do not copy other designers,” Ms.Midby said, attributing any similarities to... fashion trends... We see a trend as a concept, and a garment would be a part of a trend...6"

In general, direct copying is frowned upon, but not ostracized, in fashion. Those who copy know that ethically they are wrong, and that they will never be acknowledged as great designers. For the designers who truly care about their artistic credo and not about their commercial success alone, imitation is not an option.
The case for the copyright protection of the garment and fabric patterns that the likes of Louis Vuitton Moet Hennessy make, produces an image of a helpless designer who has no legal defense at all against those who copy his designs. That is not true. Some aspects of fashion design, such as logos and fabric patterns that create an association with a certain brand in the mind of the consumer are already protected under the trademark laws. The laws are enforceable, as was evident in a recent case in which Louis Vuitton successfully sued Dooney & Boorke for creating a logoed bag that resembled the one of Louis Vuitton. In some cases, such as the famous Burberry plaid tartan, fabric pattern falls under the trademark protection law, because the pattern has come to be easily recognizable and attributed to Burberry. Furthermore, in Europe, there exist laws that warrant protection of the garment that can be proven as a “designed” (i.e. purposefully given a certain aesthetic

 

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page 7

value in appearance, in addition to the utilitarian function) product7 In the United States the situation is less copyright-friendly; the Copyright Act can be circumvented in the case of a garment, because a garment has inherent utilitarian purpose.
Further protection of fashion design, such as garment and fabric pattern design may potentially lead to disastrous consequences besides stifling creativity, such as abuse of the law, the way it is happening in other industries. What if a fashion design business entity with powerful lawyers finds a way to copyright something completely generic (such as a pair of pants with two front pockets and two back pockets) because of the way the copyright law may be interpreted? It is not a far cry from what happens in other industries protected by intellectual property law. If RiceTec Inc., for example, can patent a “new” brand of basmati rice by simply crossing two varieties and thus effectively take an encient Indian tradition out of competition8 , why can’t something similar happen in the world of fashion design?
Law arises out of a need. Constitutional law arises out of the need to govern a country. Criminal law arises out of the need to protect a country’s citizens. Intellectual property law arises out of a need to protect the artist, and allow him to make a living off of his art and thus see an added meaning and purpose to creating anew, as expressly stated in the United States Constitution9 . Today, the intellectual property laws far exceed their original purpose of protecting the creator, and now hold a firm and an ever expanding grasp on many vital industries, creating artificial monopolies, stifling creativity, and creating a renter, instead of a creator, strata of society. The fashion design industry has not been subject to intellectual property laws that grant garment and fabric protection in the US, and has not seen much enforcement in the European courts because of the heavy burden of proof (due to vague definition of “design”10 ) that lays on those who sue for copyright infringement. May be it is not a coincidence that fashion has been a bustle of creativity and enjoys an amazing variety of products. In such an environment, there is no need for the recent push for stricter intellectual property laws to govern fashion design, yet the potential dangers of such laws are clear.

 

[faust]

I'm not going to post the list of credits due to formatting issues, but if you are interested in a particular quote, I can give them to you.

Fire at will, and good night.

 

[softgrey]

ok i read three sentences...
so far it's BRILLIANT>>!!!......



i'll be back once i've managed to get through some more of it...

 

[faust]

bump

 

[Tuti*Fruiti]

i've just completed my masters in international law in France and have studied IP at a national and international level, pm me if you still need info...

 

[faust]

i've just completed my masters in international law in France and have studied IP at a national and international level, pm me if you still need info...

i need opinions supported by the info.

 

[softgrey]

honestly faust...
i think i am only useful in that i can help you actually 'write' it better...
meaning that i can help you with format and language...
but i don't know what else i can add here...

 

[faust]

the paper is done. i thought it might open up a discussion. never mind.

 

[Jenner8675309]

I've been so busy I haven't had a chance to read it all yet, but I saw a Lessig quote, so I am excited. Love him!

 

[Tuti*Fruiti]

ok, faust but i've deadened a fair amount of brain cells by celebrating end of exams this week, so ANYTHING is difficult to read today. I'll give it a going over this weekend and post a reply by monday

 

[Acid]

faust you must have a lot of free time

 

[Lena]

this is a paper faust did acid.. obviously wasn't a typical leasure time tFS post

(thanks for sharing, printing for future read dear faust)

 

[faust]

thanks, people. take your time.

 

[cbcb]

Trademarks and copyright are only as strong as your desire to take legal action to protect them. If you don't act to protect it in all instances then it could be said that you don't care abouot people copying it. Therefore, unless you've got a lot of time and money on your hands (or an insurance policy that covers your legal costs in these matters) you may have to mug it off and carry on designing great stuff.

But if you're covering all the bases and don't have a significant body of work that's been copied, just having the copyright or trademark could conceivably be a deterrent to would-be copiers.

 

[orlem]

It seems to me that anti-copyright is important to fashion, but there's brand loyalty too -- like when you are in Target, you can buy Crest brand or Target generic brand toothpaste for cheaper, and it's the same formula and quality. Some people choose Crest anyway! High fashion is especially dependent on labels so copying might not do any good anyway -- then where's the need for copyright? It's only the small labels that need the protection in this case, and they are who you are trying to help with anti-copyright in the first place.

 

[faust]

this is a paper faust did acid.. obviously wasn't a typical leasure time tFS post

(thanks for sharing, printing for future read dear faust)

Just found out that I got an "A" in the class

 

[Jenner8675309]

Congrats! It was an excellent paper, you deserved it!