Senator wants to bring copyright law to the runway

But scholar argues fashion is like free software.

by Timothy B. Lee

Fashion designs aren't eligible for copyright protection. If one designer's work captures the imagination of consumers, other designers are free to slavishly copy it without getting permission or paying compensation.

Sen. Chuck Schumer (D-NY) is determined to change that. He represents New York City, home to some of the nation's leading fashion houses. And he has introduced the latest iteration of an idea that has been floating around Congress since at least 2006: to extend copyright protection to clothing designs. Last month, the Innovative Design Protection Act was approved by a Senate Committee. To become law, it must be approved by the full Senate and the House of Representatives.

Supporters of the legislation argue that fashion is a creative discipline like any other, and that it deserves the same kind of legal protection that most other creative endeavors enjoy. But critics counter that fashion copyrights are a solution in search of a problem. They argue that the fashion industry has thrived for decades without legal protections. And they worry that establishing copyright protection for fashion designs will open a pandora's box of litigation.

The case for fashion copyrights

One of the most articulate defenders of giving legal protection to fashion designers is Susan Scafidi, a law professor at Fordham Law School. Scafidi's official bio says she "founded and directs the nonprofit Fashion Law Institute, which was established with the generous support and advice of the Council of Fashion Designers of America," an industry group that supports Schumer's proposal.

Scafidi views fashion copyrights as a matter of fairness. "Why should designers be at a disadvantage compared to filmmakers, novelists, reporters? Designers have to swim with weights on their feet compared with other creatives," she told us in a phone interview.

Why are fashion copyrights needed now, after two centuries without them? Scafidi believes that recent technological progress has made the protection more necessary. As she put it in Congressional testimony in 2006, "digital photographs from a runway show in New York or a red carpet in Los Angeles can be uploaded to the Internet within minutes, the images viewed at a factory in China, and copies offered for sale online within days—months before the designer is able to deliver the original garments to stores."

Scafidi acknowledged that there is a lot of creativity in fashion despite the lack of copyright protection. But she argued that the current system makes it difficult for new designers to build a body of work over the course of a career. Anybody can come up with a single clever design, she said. But she argued that it requires "sustained creativity" to "come up with a great idea four times a year, to have deliveries almost every month."

"It's over the life of a designer that you get great things," Scafidi told us. "I don't think we would want to have novelists who could only ever write one novel and then go out of business."

"A classic economic freedom issue"

But Chris Sprigman, a law professor at the University of Virginia who opposes the fashion copyright proposal, thinks the novelist analogy proves the opposite point. "Since when does copyright ensure that a novelist—even a good one—gets to write a second novel? The market determines that," he told Ars in a phone interview.

In his new book with Kal Raustiala, The Knockoff Economy: How Imitation Sparks Innovation, Sprigman argues that the rampant copying in the fashion industry acts as a spur to creativity. People use fashion to distinguish themselves from the crowd. As cutting-edge designs get copied, their designers are forced to go back to the drawing board to stay ahead of the curve.

"The fashion cycle runs on copying," Sprigman said. "Copying is the fuel that makes it go. Absent copying, the fashion industry would be smaller. It would be poorer."

Sprigman drew a parallel to the open source software model, which relies on programmers "copying each other's code, tweaking it, making the code better at doing its job." Copying is also rampant among chefs and comedians, two other fields that lack formal legal protections. Yet those industries also appear to be healthy.

But while he doubts either fashion designers or their customers would benefit from a fashion copyright regime, he predicts the scheme would be a bonanza for lawyers. "It's a classic economic freedom issue," Sprigman argued. "The fashion industry has been pretty easy to enter. Lawyers are not part of the price of admission."

With most copyrighted works, including books and music, it's trivial to tell whether one work is a copy of another. But fashion is more complex. The line between copying a dress and using an existing dress as the inspiration for your own unique design is fuzzy.

Scafidi says the Schumer bill addresses this by establishing a heightened standard for copying. While most types of copyright only require that two works be "substantially similar" to establish that copying has occurred, the fashion copyright regime would require proof that the new work is "substantially identical" to the original.

And she touts other provisions of the law designed to avoid the overkill that has typified the copyright system in recent years. While most copyrights apply for the life of the author plus 70 years, fashion copyrights would only be available for 3 years. The law would also offer a 3-week grace period for accused copyists. If a designer believes a competitor has copied her design, she must give a warning and give the competitor three weeks to sell off his existing stock before she can file an infringement lawsuit.

Still, Sprigman argues that the "principal result will be to introduce lawyers into the fashion innovation system." He points out that large designers don't necessarily have to actually win copyright lawsuits in order to bully smaller competitors. Just the threat of protracted litigation can be a powerful weapon in the hands of deep-pocketed incumbents. Given America's lawyer-happy culture, he believes any fashion copyright scheme, no matter how carefully crafted, risks raising barriers to entry for smaller designers.

As the weeks tick by, the odds of the fashion copyright proposal passing this session of Congress are starting to look bleak. For the next three weeks, members of Congress will be focused on getting re-elected. After that, there will only be a short lame duck session before the new Congress starts. At which point the bill's supporters will have to start over from scratch.

But Chuck Schumer seems unwilling to take no for an answer. Congress has already declined to enact fashion copyrights in two previous sessions of Congress. So Schumer may re-introduce the legislation yet again in 2013, hoping that the fourth time proves to be the charm.