In February 2015 Gucci unveiled this very furry shoe.
I love this ridiculous thing.
I can’t afford to spend $1000, but no problem!
I can buy this knockoff.
Or this one.
So, which of these are legal?
Trick question.
And it’s a constant fight in the fashion industry.
In the US, you can protect songs.
“I like those Balenciaga's, the ones that look...”
Movies.
“That blue represents millions of dollars and countless jobs…”
Or paintings.
Why not fashion designs?
“Knockoffs” mostly are not counterfeits.
People tend to conflate them but they’re not the same.
This is a counterfeit.
It copies the symbols of the brand that made the original.
So counterfeits are typically illegal.
Knockoffs, on the other hand, just resemble the design of the original.
And that’s usually fine.
That’s because intellectual property laws only protect some kinds of designs.
A trademark is any symbol that indicates to consumers the source of products or services.
This medallion on the front, which is the Tory Burch logo, tells you where the flat
comes from. It comes from Tory Burch.
A patent is different.
A useful and novel invention.
They don’t work for most fashion designers because you can’t get damages until it’s
granted and by the time it's granted most fashions are out of fashion.
In fashion, the main battleground is
Copyright.
That is the right exclusively to copy or to distribute an artistic or literary work that
is original.
Like…
“You’re wearing a sweater that was selected for you by the people in this room.”
But not...
The shape of this shoe is not copyrightable.
Fashion designs are typically thought of as useful articles.
Copyright doesn't protect useful things.
It only protects artistic or literary things.
Unlike a song or a movie, a shoe or a T-shirt has utility as much as design.
But… what about this?
Not my thing?
This might seem at a certain level to be kind of bizarre.
But there is nonetheless a useful aspect to the garment.
It does possibly keep you warm.
Wait!
It’s art!
Sort of.
And now…
It’s a gown.
You have copyright on the painting.
I can certainly have a copyright on the fabric design.
I can't have a copyright on the shape of the dress.
The Subcommittee on Intellectual Property, Competition, and the Internet will come to
order.
The truth, the whole truth, and nothing but the truth so help you God.
Fashion design is intellectual property that deserves protection.
We create something from nothing at all.
And in’t that the American dream?
I don’t agree with you.
But you’re very impressive in your testimony.
They say, well, we're artists and we deserve protection.
The answer to that argument is at least in the States we don't tend to make decisions
about intellectual property based on what people deserve.
We tend to make decisions based on what we think is healthy for creativity.
The Constitution does give Congress the right to stop copying, but only to “promote the
progress” of creative industries.
When you look at countries across the world, you’ll see that there’s a correlation
between the strength of intellectual property laws and higher GDP.
But in fashion, Sprigman believes that it’s actually the ability to copy that promotes
progress.
Fashion designers take "inspiration," as they put it, from existing designs and they do this
with abandon.
But this is what creates trends, and trends sell fashion.
When the copying proceeds to a certain point, fashion forward people have had enough.
They jump off.
They jump on to the new trend that copying has helped to set.
This rapid cycle, created by the freedom to copy, actually forces the fashion industry
to innovate.
If you look at the prices of fashion goods over time, what you see is that that top ten percent
of fashion goods in terms of price, the price of these is going up and up and up over time.
Whereas everything else, those prices are staying stable or maybe falling a little bit
over time.
It doesn't seem like competition from knockoffs is disciplining the price of the luxury stuff.
What seems to be happening in the fashion industry is what's happening in America and
indeed in the world.
The rich are getting richer disproportionately, and the clothes they wear as a result are
getting much more expensive.
The people who make those clothes, the companies that make those clothes, are profiting.
New technology and the speed of production has amplified the two views on knockoffs.
Today, digital images from runway shows in New York can be uploaded to the Internet within
minutes, and be copied, and offered for sale online within days, which is months before
the designer is able to deliver the original garments to stores.
That practice was not handed to us by God or by law.
If the industry at the high end was very concerned about the speed of imitation, that practice
would change.
It isn’t.
So it’s hard to protect fashion designs because it’s not obvious that protecting
them promotes progress.
And from a legal perspective, that’s all that matters.
Even though to the artists, that’s not the only thing at stake.