"What I make is picked up and copied by everybody," Coco Chanel once said. The iconic fashion designer - who is also famous for saying that "if you want to be original, be ready to be copied" - often smiled approvingly when she passed women on the street wearing collarless jackets inspired by her coveted tweed suits. But she never tolerated outright theft of her designs.
In 1930, Ms. Chanel joined fellow designer Madeleine Vionnet in suing Suzanne Laneil, a copyist who was caught selling Chanel and Vionnet knockoffs. A French court found Laneil guilty in a landmark case that recognized original French fashion designs as "real works of art [...] entitled to the same protection accorded authors and copyright holders."
Many decades later, American fashion designers are clamoring for similar safeguards. After heavy lobbying from the Council of Fashion Designers of America among other parties, in 2006, Congress heard one of the first of a number of bills aimed at amending the Copyright Act to include protections specifically for fashion designs. The most recent version, the Innovative Design Protection Act, which was put forth in 2012, has made little traction since its introduction.
Some intellectual property scholars think the introduction and possible enactment of fashion specific legislation is a terrible idea. "Growth and creativity in the fashion industry depend on copying," said Christopher Sprigman, a law professor at New York University School of Law. "It's the engine that drives the fashion cycle, and the bill would kill the engine." He convincingly argued in a Virginia Law Review article he co-wrote that the lack of copyright protection is the key to fashion's success as a $181-billion industry. He calls this "the piracy paradox."
Fashion booms precisely because customers tire quickly of their clothes and continually buy new ones. Fashion can't rely on technological improvements to make old products passe. Instead, it relies on copying, which spreads styles rapidly through all levels of society, from the haute couture client to shoppers at such low-priced retailers as H&M, Zara and Forever 21. As a result, what was trendy in April looks demode by August.
Consequently, designers are forced to continually reinvent the wrap dress (Diane von Furstenberg's looks a lot like one done by Claire McCardell in the 1950s). "I got copied all the time," said Betty Kirke, the leading authority on Vionnet and a former designer of ready-to-wear apparel. "When I complained, the buyers would say, 'Just keep ahead of the knockoffs and you'll be fine.'"
But that is nearly impossible in the Internet Age. Photos from the latest runway shows were online before the models left the runway, and knockoffs flood stores long before the originals arrive - for a mere fraction of the price of the original. Therein lies the chief problem. A designer's success depends on the power of her clothes to command attention. If knockoffs - even poor imitations - show up first, the power is lost.
U.S. designers who want to copyright clothes should consider that France's copyright law, which covers fashion design, and its Design Act, which extends patent-like protection to fashion, have - according to experts - done little to staunch piracy. It's as big a problem as ever in France and, indeed, all over Europe.
Style theft dates back to the 18th century, when seamstresses at the Court of Versailles tried to bribe Marie Antoinette's dressmaker to find out what she would wear next. Over the years, French designers tried a variety of ways to thwart illegal copying. Vionnet, for instance, put her thumb print on her labels to brand them as originals and installed dyeing facilities to change colors at the last minute.
Throughout the first half of the 20th century, the Fédération française de la couture, du prêt-à-porter des couturiers et des créateurs de mode (English: French Federation of Fashion and of Ready-to-Wear Couturiers and Fashion Designers) rigidly controlled access to the shows for French haute couture and ready-to-wear collections. The press signed agreements that they would not make unauthorized sketches and would honor photo embargoes. Violators were banned from the shows forever. And yet, style piracy still thrived. In the 1920's and 30's, back-alley fashion speak-easies used stolen toiles and sketches made by nefarious couture-house employees to supply copies to dishonest private clients, French shop owners and foreign buyers.
Interestingly, France's protective laws have spurred few lawsuits. The French "don't have an entrepreneurial class of plaintiff's lawyers like we do," Sprigman explains. But if the fashion copyright bill now before Congress becomes law, cases could clog the courts for years. And that could have a chilling effect on the whole industry.
Moreover, there is the (arguably highly offensive to judges) position that scholars make that fashion copyrights would be difficult to enforce. How would courts decide if something as standard as a neckline or a hem is original? Designers continually recycle ideas and imitate one another. Sometimes they even filch from the copyists themselves.