What if Melania Trump's Dress Had Been a Copy?

Melania Trump made headlines on the heels of the Republican National Convention on Monday evening, as her speech bore quite a bit of similarity – some say 30 words, other says up to 52 – to one that Michelle Obama gave at the Democratic National Convention in 2008. As of Tuesday morning, the media was saturated with articles highlighting the widespread plagiarism allegations, “quickly overshadowing Trump’s speech, which was to have been her introduction to voters,” per CNN.

Legal publications have been quick to explore the potential law-based ramifications of the similarities; as original speeches are subject to copyright protection in accordance with the Copyright Act. The estate of the late Dr. Martin Luther King, Jr., for instance, is known for being particularly litigious in protecting its rights in King’s famous “I Have a Dream” speech.

With such plagiarism and copyright infringement allegations in mind, it is interesting to note that the white Roksanda Illincic dress that Trump wore to deliver what many publications are calling a “strikingly similar” speech on Monday evening was original. And even if it was not, the protection afforded in such an instance would be pale in comparison to the potential protection at play in connection with a copied speech. In short: if Trump had worn a blatant copy of another’s dress design, there would be little – if any – legal recourse for the designer of the original. The only real exception would be if there was an original print or pattern on the dress, which obviously is not the case here. So, no copyright protection. That's how fashion works (in the U.S., at least). 

Why the disparity, you ask? Well, primarily, there is a rather low level of expectation of originality in fashion. This is rather obvious given the almost entirely legal business models of fast fashion retailers, like Forever 21, H&M and Zara, which base the majority of their designs on those of others. 

Yes, the level of originality expected is much higher for the written or spoken word than it is for fashion designs, and the protection provided is much greater, as well. The Copyright Act of the U.S. explicitly provides protection for “literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works.” The same legislation fails to provide protection for useful articles - such as garments - in their entirety, meaning that garments are never fully protected and this, fair game for copying. Speeches and various writings, however, are not fair game, as they - if original - are protected by law.

Why does copyright law afford much vaster protection to writings than garments? Well, there is, of course, the Copyright Act drafters’ distaste for protecting useful articles (thereby avoiding granting a monopoly of sorts to the rights in a useful article). But there is more to it than that. There is the larger view that fashion is simply more frivolous - and inherently less valuable or important - than the other art forms that are traditionally considered to be copyrightable subject matter, such as those listed above. The rationale here runs along the lines of: Fashion is “just fashion.”

As C. Scott Hemphill and Jeannie Suk wrote in a 2009 article, entitled, The Law, Culture, and Economics of Fashion: “Everyone inevitably expresses themselves through the clothes they wear (even if to communicate that they are too serious to care about fashion). But some consider fashion frivolous or wasteful.” They go on to note: “The idea that the measure of the value of fashion is akin to the measure of the value of books, music, and art may strike some as absurd.” These views, and others just like them, certainly represent at least part of the larger social view of fashion and the reason why fashion has not been taken more seriously as a protectable art form.

With all of this in mind, while a copied dress would have certainly been on the radar of fashion publications, it would have most likely been disregarded in no time as the tedious and inconsequential musings of the fashion press (see below). The larger faux pas here and the one that will certainly have more staying (read: damning) power is Trump's questionably original speech. This is not just because there are potential legal ramifications at play but because the subject matter is just so much more serious in the minds of most. (Forget for a moment that fashion is a $1.2 trillion global industry, with more than $250 billion spent annually on fashion in the United States. Also forget that in New York, it is one of the largest industries, second only to finance).

As for whether Trump's dress is worthy of discussion in its own right, the New York Times' fashion director, Vanessa Friedman, one of the most esteemed voices in fashion journalism, seems to think so. Penning a piece for her "On the Runway" column, Friedman noted: "Unlike pretty much every would-be first lady, Ms. Trump wore a dress not by an American label, but by Roksanda Ilincic, a Serbian-born designer based in London ... In normal circumstances, this probably would have been a big deal; there is a reason that Mrs. Obama, who has done more to break the rules about first ladies wearing only American designers than any other president’s spouse, wore Maria Pinto (2008) and Tracy Reese (2012) for her convention speeches, and that Cindy McCain wore Oscar de la Renta in 2008, as did Ann Romney in 2012."

It is also worth noting that the $2,190 dress, which Trump bought herself on Netaporter.com, a campaign spokeswoman told WWD, promptly sold out following her appearance on the RNC stage, and will likely make its way to the shelves of a Zara near you in no time.