By James

For 5 years many designers and at least one fashion trade association have been lobbying congress for fashion design copyright laws in the US.

I have one simple question: what does anyone expect to gain from such a law?

The answer might sound obvious; fashion designers want to stop other designers stealing their designs, right?

But there’s two far more searching questions behind this one simple inquiry:
1. How do fashion houses and designers expect to gain, financially or otherwise, from such protection?
2. Will consumers gain, or lose out?

I’m about as far from high fashion as, well, almost everyone else I know pondering the philosophical question of if and how to protect intellectual property; but as an outsider to the world of high fashion I can highlight lessons from other industries.

How to reward creators and artists is a very serious challenge.  It covers a whole range of  subjects, from arts funding (something Tina looked at recently) to enforcement and royalty distribution.  It’s something I’ll keep coming back to again and again.

Fashion doesn’t suffer the same funding issues as many other art forms.  There’s an established cash tree. Wealthy individuals buy originals. Because top designers inspire/get ripped-off by (*delete as appropriate) street outlets, there’s massive public interest in the world of high fashion. It’s not some remote preserve of the very rich – it’s something everyone can feel a part of, even though very few can afford an original.

And because of the public interest, there’s a secondary industry around fashion events, photographer attendance/licensing, magazine exclusives, brand cross-licensing for perfumes, etc.

So what will fashion copyright achieve?

Prevent cheap high street knock-offs? And for what purpose? For many people, if they can’t buy it from Top Shop or Primark, they can’t afford it.  The only way designers can enter that market is at a price people can afford to pay – and they don’t need fashion copyright to do this; many simply choose not to compete in that market.

Plus, high street outlets still play a role in pumping money into fashion, through shows and events.  Even the public subsidise the extended industry in a way, by paying for magazines.

Take away the near-replicas at the bottom of the chain and you risk damaging the delicate symbiosis that keeps the public interested in what top designers are creating; interest that exists today even though most will never wear an original.

Maybe it’s hoped the law will prevent other top fashion houses from stealing designs?  But isn’t there already a perfect disincentive for that already, in ridicule? Artistic pride and brutal fashion journalism already make a phenomenal team to prevent people taking credit for anything substantially another person’s work. As in other industries; just ask Johann Hari.

Or maybe fashion designers are looking for royalties and cross-licensing deals.  This sounds the most plausible, demanding royalties from cheap imitators. Sounds perfectly reasonable that a high street chain should pay a proportion of the sales cost to the original designer.

But behind the reasonable-sounding premise lies a wealth of  facilitators required to make licensing work.

First and foremost, lawyers. Having rights is all well and good, up to a point of dispute.  Senior partners at some City law firms can expect to take £2m a year.  A 26-year-old IP specialist lawyer told me her hourly rate is £500/hour.  Court action is often the only way to decide what is and isn’t a copyright rip-off.

After all, what is originality but undetected plagiarism? [William Ralph Inge - or maybe I should have claimed that in irony?]

Secondly, insurers. As in the film industry today, investors are incredibly wary about liability for copyright claims, sometimes occurring years or decades after release.  So they insist on indemnity insurance to protect their investment in creation.

And most insurers insist on a meticulous process of clearing that goes beyond what the law requires or exempts through e.g. incidental inclusion or fair use.  Documentary makers have been known to be required to clear or mute the phone ring tone of a passer-by, in order to satisfy a sample clearing process designed by their insurer to minimise financial risk.

In fashion I’m not so much questioning the simple case of protecting whole works; preventing any distinctive dress or suit being copied more-or-less wholesale by a high street outlet.  The system might just work to a point for this single case.

It’s when the inevitable happens, and we start seeing copyright claims over each component decoration, distinctive stitch, trim, cuff, collar, beading arrangements etc; it’s at this point the system will collapse into an administrative black hole.

More importantly, the monopoly granted on each distinctive work has lead in other industries to disproportionate licensing demands; a situation where the sum of each individual IP protected part is way more than the value of the whole.

Commentators have started to question whether the process of clearing music samples, and the disproportionately high royalties demanded for short samples, killed an innovative style of music (sample-based) soon after its creation.

Such specific cases highlight a premise that copyright and patent rights have been corrupted, and now act as a disincentive to innovation in some sectors – achieving exactly the opposite of what IP protection was designed to achieve: a state-granted monopoly to encourage investment and innovation.

The wider copyright debate is inevitably driven by money, and the money lies with those protecting existing portfolios, and the associated industries and business models that have grown up around rights holders.

On fashion copyright specifically; yes, there’s a moral case for the designer to have a right to protect against copying.  But this has to be balanced against wider considerations such as public interest: we have today both an innovative fashion culture and cheap consumer goods.

In the amoral mess that exists right now, has the market achieved the best compromise – when regulation in other sectors has lead to the bulk of time and money diverted to administrators and facilitators, away from the creative process?

The question is not why can’t fashion be protected like other creative works, but why does fashion need a state-sanctioned monopoly.

James Firth

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