By Ashwini Tallur, National Law University Jodhpur
The legal regime protecting intellectual property has helped foster innovation in many industries. However, in an ever changing Industry such as fashion, does it make sense to have a strict regime? This blog attempts to explain the rationale behind iPR, why the Fashion Industry doesn't have one, and takes a look at the pros and cons of a strict protection regime in this industry.
Rationale behind IPR
“Intellectual property” (IP) refers to creations of the mind: inventions; literary and artistic works; designs; and symbols, names and images used in commerce. IP is protected in law through patents, copyright and trademarks, which enable people to earn recognition or financial benefit from what they invent or create. [i]
The traditional argument for strong IP protection is that any piece of work is difficult to create but easy to copy. Without the presence of a strict IP regime, it is argued, “copy cats” will free-ride on the efforts of creators. And without IP rights, copying will stifle and discourage innovation. [ii]
As Pranjal Shirwaikar puts it: IP is a monopoly right that grants to its owner the right to exclusively enjoy the rights and benefits granted. This grant of monopoly right coupled with the willingness to invest stands as an incentive for innovation. Thus, it is presumed that the grant of IPR would promote innovation and development. [iii]
Fashion and IPR
However, there are industries that produce a huge variety of creative goods without strong IP protection, Fashion being one. In the months leading up to the wedding of Prince William and Catherine Middleton, the future Duke and Duchess of Cambridge kept Catherine‘s gown a secret. But as soon as she stepped out to reveal Sarah Burton’s Alexander McQueen creation to the world, copycat designers began working on knockoffs available for a fraction of the price. [iv] Copying in this industry is rampant, yet competition, innovation, and investment remain vibrant.[v] The global fashion industry sells more than $750 billion of apparel annually. [vi]
Some people argue that despite the amount of “copying”, the fashion industry produces high levels of innovation, and attracts the investment necessary to continue in this vein. How true is this?
Many legal commentators have discussed the status of fashion design in IP law. [vii] Many criticize the current legal regime, claiming that it fails to protect apparel designs, and claim for a stronger one. [viii] They believe that design piracy is unfair and detrimental to original designers, costing them hundreds of millions of dollars every year, as it allows design pirates to reap the benefits of their creativity, labour and risk-taking. [ix] Notions of justice and fairness suggest that these designers should be compensated and protected by law. [x] Unscrupulous businessmen could manufacture knock-off copies of any designer's ensemble and flood the marketplace with cheap imitations of haute couture. [xi]
The call for protection of designers
Prices of goods might come down, as designers compete with free-riding copy-cats. A company that pirates other designs does not have the high designing costs, and can afford to sell its products at a lower cost, causing problems for the creators by forcing them to lower their prices due to the competition, thus making its venture less profitable and lessening the incentive to create its own designs. [xii]
Another issue on this point is the protection of new designers. While a troop of established design houses from Prada to Yves Saint Laurent exist, the design market continuously witnesses the birth of many young designers, who are the most vulnerable to design piracy. Small businesses lack the financial ability to bring suits against design pirates, something that larger firms take advantage of. A new designer would face the threat of losing credibility with customers, a decline in value of the original design, and may even be forced out of business. [xiii]
It is believed that fashion designing is a form of art that requires more than the minimal level of creativity needed for copyright protection. Hence, the argument that fashion designs should be granted the same protection as other forms of art. [xiv]
Case against IPR protection in the Fashion Industry
Can this be a case where the cure could prove to be worse than the disease?
Professor Raustiala and Professor Sprigman, refer to a concept called ‘negative spaces’ which defy traditional justification for intellectual property law [xv]. A ‘negative space’ constitutes a set of creations where the traditional theories of IPR do not apply. In their paper, they apply the concept of ‘negative spaces’ vis-à-vis the fashion industry and prove the inapplicability of traditional justification for IP protection to the fashion industry. Instances of copying in the fashion industry have been criticized and but still stand accepted and tolerated on the grounds of ‘homage’, ‘dedication’, ‘inspiration’ rather than classifying such actions as infringement and taking legal action. [xvi] The operation of the fashion industry requires large investment, constant innovation and production within short periods of time on a continual basis, irrespective of IPR protection. [xvii]
The life cycle of an element in the Fashion Industry has the following stages: A novel artistic creation, say, a silk stole, is introduced, to distinguish from the masses that have followed a certain trend until a new trend or fashion is introduced. This novel creation –‘silk stole’ then witnesses popularity, and rapid mass imitation. Now, too many people own this ‘silk stole’. This forms yet another need to create, innovate and be distinct from the masses. The need to innovate springs from the need to distinguish from the masses and move away from standardization. [xviii]
Despite several remedies against copying available to fashion designers, they do not wish to utilize them. The main explanations for this are the features of the fashion industry and the costs of registration process. The seasons in fashion are really short, only a few months, [xix] whereas the protection granted with registration lasts at minimum five years. As this article by Christian Barrère and Sophie Delabruyère rightly puts it, majority of fashion designers consider that, with fashion seasons lasting only a few months, the five-year minimum protection period offered by these registration systems is not appropriate for often ephemeral fashion designs, and that their time and money would therefore be better spent on creating new designs than on registration. [xx]
In this industry, the purpose is not to improve but to create. However, the main input of the products is creativity and heritage, which cannot be easily protected as they include a cultural commons dimension. [xxi] If the typical boy-meets-girl story or the works of Prem Chand and Tansen were copyrighted, most of the music, films and novels we enjoy today would be illegal. In any creative sector, granting excessive rights stifle creativity, because every right asserted takes away "raw materials" and “inspiration” from future creators. [xxii] In fact, Professor Raustiala and Professor Sprigman believe that piracy ironically benefits designers by inducing more rapid turnover and additional sales. [xxiii] After all, imitation is the highest form of flattery.
Another argument in favour of a low IP regime is that it helps the industry establish trends via a process called “anchoring”. Copying “anchors” the new season to a limited number of design themes. Thus anchoring helps fashion-conscious consumers understand when the trend has shifted, what defines the new trend, and what to buy to stay “in fashion”. [xxiv] Copying is an important element of the trend-making process. It helps set trends and then helps destroy them, that is, once a design has been widely copied, the consumers hop on to the next new thing. Copying creates trends, and trends are what sell fashion. Every season we see designers “take inspiration” from others. Trends catch on, become overexposed and die. [xxv] This is the familiar fashion cycle, which is possible due to the absence of copyright.
But perhaps the greater risk is in the hands of lawyers (and designers who can afford them), who would be among the biggest beneficiaries, as disputes would likely erupt into expensive, time-consuming lawsuits. With copyright protection fashion prices will rise, and the creative cycle will slow down. [xxvi]
The bottom line is, it is through copying that the fashion industry creates trends. And it is trends that sell fashion. For this reason, fashion designers’ “freedom to copy” does not harm the fashion industry, and may in fact be necessary for the industry’s continued success.
To protect, or not to protect, that remains to be seen.
[i] See http://www.wipo.int/about-ip/en/.
[ii] Raustiala Kal and Sprigman Chris, The Piracy Paradox: Innovation And Intellectual Property In Fashion Design, Virginia Law Review, 92 (8) (2006) 1687
[iii] Pranjal Shirwaikar, Fashion Copying and Design of the Law, 14 Journal of intellectual Property Rights 113(2009)
[iv] Cheryl Wischhover, The First Kate Middleton Knockoff Wedding Gowns and Accessories HitStores; Here Are the Good, the Bad and the Ugly, FASHIONISTA (May 2, 2011, 12:10 PM). Available at http://fashionista.com/2011/05/check-out-the-first-kate-middleton-knockoff-wedding-gowns-and-accessories/
[v] Supra at ii.
[vi] Safia A. Nurchai, Style Piracy Revisited, 10 J. L. & Policy 489 (2002).
[viii] Have a look at this website for a petition against fashion piracy.
[ix] Leslie Hagin, A Comparative Analysis of Copyright Laws Applied to Fashion Works: Renewing the Proposal for Folding Fashion Works into the United States Copyright Regime, 26 Tex. Int’l L. J. 341 (1991)
[x] Priya Bharathi, There is More Than One Way to Skin a Copycat: The Emergence of Trade Dress to Combat Design Piracy of Fashion Works, 27 Tex. Tech L. Rev. 1667 (1996)
[xi] Lynsey Blackmon, The Devil Wears Prado: A Look at the Design Piracy Prohibition Act and the Extension of Copyright Protection to the World of Fashion, 35 Pepp. L. Rev. 1 (2008). Available at http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1109&context=plr.
[xii] Tsai, Julie P., Fashioning Protection: A Note on the Protection of Fashion Designs in the United States, (2005) Lewis & Clark Law Review, p. 1-33. Available at http://law.lclark.edu/live/files/9704-tsaipdf.
[xv] Supra at ii.
[xvi] Supra at iii.
[xix] WIPO, 2005, IP and Business: Intellectual Property in the Fashion Industry, WIPO Magazine, May-June, No3, 16-19.
[xx] Fischer Fridolin, Design Law In The European Fashion Sector, 2008, WIPO Magazine, January-February, No.1, 12-13
[xxi] Christian Barrère, Sophie Delabruyère, Intellectual Property Rights on Creativity and Heritage: The Case of the Fashion Industry, European Journal on Law and Economics, 2011, Vol. 32, 3: 305-339
[xxii] Christine Cox and Jennifer Jenkins, Between the Seams, A Fertile Commons: An Overview of the Relationship Between Fashion and Intellectual Property, The Norman Lear Centre. Available at http://learcenter.org/pdf/RTSJenkinsCox.pdf.
[xxiii] Supra at ii.
[xxv] This Phenomenon is called “induced obsolescence”. See Copycats of the Red Carpet, Kal Raustiala and Chris Sprigman, Freakonomics Column, New York Times, March 3, 2010. Available at http://newsroom.ucla.edu/stories/copycats-of-the-red-carpet-154674
[xxvi] Kal Raustiala and Christopher Jon Sprigman, Why Imitation is the Sincerest Form of Fashion, The New York Times, August 12, 2010. Available at http://www.nytimes.com/2010/08/13/opinion/13raustiala.html?scp=1&sq=raustiala&st=cse&_r=3&.