Op-Ed: There are Benefits to the Lack of Legal Protection in Fashion

To this day I can recall my elation when Isabel Marant sent her wedge sneaker down the runway during Paris Fashion Week. Evidently, I was not the only one who saw the appeal of this footwear because the shoe quickly appeared on the feet of numerous celebrities, bloggers, and other trendsetters. The bandwagon effect created by this “it” shoe was quickly realized by fast fashion giants who wasted little time stocking their shelves with a variety of knockoffs. If you are like me, this secondary  fashion market is where you acquired your own pair of “Marant-esque” sneakers. Looking back on my purchase of these copied shoes, it is hard to believe how an industry that thrives on such obvious forms of copying can be so profitable when there is very little copyright protection. However, the success and steady flow of new creative ideas suggests that there is a silver-lining to the fashion industry’s general lack of intellectual property protection (there are, of course, an array of instances in which the law provides some form of protection for garments and accessories).


Johanna Blakely, deputy director for the Norman Lear Center, a multi-disciplinary research and public policy center based in Los Angeles, made this point as a featured speaker during a TED sponsored talk at the University of Southern California (where the Norman Lear Center is located) in 2010. During her speech, Blakely noted that the fashion industry defies one of the core principles of intellectual property, which is that creators will be more motivated to innovate when they are able assert ownership rights for their work. Under this logic, the fashion industry should have ground to a halt and the proverbial well of creative ideas should run dry because fashion designers remain almost entirely vulnerable to copying. However, one would never guess that designers lacked incentive to create new and innovative work judging by the turnout of fashion houses and new designers at the various fashion weeks in New York, Paris, London, and Milan.

There is no shortage of opinions regarding the negative effects of the current copycat culture. However, the seemingly unpopular alternative is how the ability to copy, specifically in fashion, resulted in a broader and richer creative palette from which designers can draw. Blakely notes that this type of open and free copying allows for designers to elevate the utilitarian nature of clothing into something more akin to art. For a visual description of what I am talking about, I invite you to view the Spring 2013 collection of Dutch designers Viktor and Rolf.

Despite the workmanship put into every designer’s collection, there is no stopping the continuous and downright blatant copying by fast fashion retailer. However, a frequently overlooked point is that I, and the other customers of Zara, H&M, and Forever 21, are not the same clientele that frequent Gucci, Chanel, and Prada. An alternative way to view fast fashion is by seeing it as a way that enables everyone to fully participate in fashion at their individual price points.

In efforts to outsmart copying, designers have not only worked to make their designs more difficult to copy, but have also released collaborative collections with fast fashion stores. In the aforementioned TED talk, Blakely stated how designers like Stuart Weitzman have countered efforts to knockoff his shoes by making some designs too difficult to copy with the cheaper materials. By making quality an integral part of the design, fashion designers are provided with tools to police attempts at knockoffs. Additionally, beating copyists to the punch by designing capsule collections with stores like Target and H&M has been the strategic path taken by designers like Zac Posen and Sonia Rykiel.

As a law student, artist, and fast fashion customer, I see the merits of both sides of this issue. On one hand there is a level of inequity when fashion designers are not afforded the same protection as the creators in other fields like music and film. In contrast, one of the likely effects of putting strict legal standards on fashion is an adverse impact on the industry’s open creative culture, as well as access to fashion by consumers. Thinking back to my faux-Isabel Marant sneakers, which now occupy the back-most corner of my closet, I remain morally conflicted by them and my other purchases of fast fashion knockoffs. However, this inner-conflict only emphasizes my point that this argument is a complex issue that is not as black and white as it seems.

Taylor Moore is currently a second year student at Howard University School of Law in Washington, DC. During law school she has worked as a research assistant to professors and attorneys in the field of intellectual property.