W HAT I S F ASHION ?
Fashion is ever-evolving, with styles rising and falling in popularity over time The desire for new clothing goes beyond mere physical necessities; while practical needs like replacing worn-out jeans or acquiring a warmer coat during colder months exist, the majority of individuals from various socio-economic backgrounds engage with fashion in more complex ways Even those who do not consciously follow trends find themselves participating in the fashion cycle.
Fashion change is a complex phenomenon that requires cultural analysis to understand its dynamics Various thinkers across different disciplines have explored the essence of fashion, particularly focusing on the journey of styles from their introduction to widespread adoption and eventual decline This article will first examine two key theories of fashion that will be pivotal in our subsequent discussion.
22 See, e.g., George B Sproles, Analyzing Fashion Life Cycles: Principles and Perspectives, 45 J M ARKETING 116, 116 (1981).
Status
Fashion is often seen as a battleground for social status, a perspective notably articulated by German sociologist Georg Simmel at the turn of the century His views were significantly shaped by Thorstein Veblen's foundational theories on social class and consumption.
The Theory of the Leisure Class 23
Fashion serves as a tool for social elites to distinguish themselves from lower classes, who often admire and imitate their style This creates a cycle where the upper classes adopt new fashions to maintain their exclusivity, leading to a trickle-down effect that reflects their desire for group distinction Meanwhile, the lower classes attempt to erase class differences through imitation Consequently, the evolution of fashion is driven by the interplay between social stratification and aspirations for social mobility.
Founded in 1892, Vogue aimed to authentically represent the lifestyle of New York's high society, establishing itself as a dignified journal focused on society, fashion, and ceremonial life At the turn of the century, the magazine emerged in a social context where privileged families felt threatened by wealthy newcomers seeking to infiltrate their aristocratic circles From its inception, Vogue featured not only the fashions of the upper class but also showcased the homes and parties of prominent families, alongside articles on social etiquette.
Vogue has maintained its status as the leading U.S fashion publication for over a century, significantly influencing both consumers and the fashion industry The magazine continues to highlight the vital connection between fashion trends and consumer behavior.
23 See V EBLEN , supra note 4; Simmel, supra note 4
24 See G RANT M C C RACKEN , C ULTURE AND C ONSUMPTION 94 (Indiana Univ Press
1990) (1988) (characterizing fashion as an upward “chase and flight” pattern rather than a trickle-down process)
25 Arthur B Turnure, Statement, reprinted in V OGUE V OLUME I N OS 1-28, at 16, 16 (N.Y., The Fashion Co 1893)
26 N ORBERTO A NGELETTI & A LBERTO O LIVA , I N V OGUE 2 (2006)
29 See, e.g., Xazmin Garza, The Making of Style, L AS V EGAS R EV -J., June 13, 2008, at 13CC (citing “the fashion equivalent of the bible, Vogue magazine”); Karen Thomas,
“Men’s Vogue” Goes for the Sophisticated Guy, USA T ODAY , Aug 24, 2005, at 2D (describing Vogue as “a 100-year-old women’s fashion bible”); Emily Wax, For India’s
The launch of the Indian edition of Vogue magazine marks a significant moment in high-end fashion, as it serves as a key influencer in setting trends and defining style Vogue showcases the lifestyles of the elite, featuring wealthy socialites and celebrities, yet its appeal extends beyond the affluent The magazine's broad circulation targets aspiring middle-class consumers alongside upper-middle-class and upper-class women, making it a vital resource for those seeking to engage with luxury fashion.
Despite criticisms of the social class model as overly simplistic, the significant impact of status on fashion remains evident today High-status individuals influence fashion trends, which are often disseminated to consumers through observation Fashion magazines highlight this trickle-down effect by pairing images of luxury items, typically out of reach for most readers, with similar, more affordable alternatives and purchasing information This strategy reinforces the notion that ordinary consumers are driven to emulate those who can afford high-end fashion, a concept actively promoted in mainstream fashion discourse.
Zeitgeist
The theory of "collective selection," associated with sociologist Herbert Blumer, posits that fashion arises from a collective process where individual choices among various styles shape shared tastes, leading to the emergence of fashion trends This trend formation process starts ambiguously and gradually becomes more defined until a specific fashion is solidified Ultimately, these trends embody the prevailing spirit of the times.
30 See M EDIAMARK R ESEARCH & I NTELLIGENCE G ROUP , 2008 S URVEY OF THE
A MERICAN C ONSUMER (2008) Vogue has a circulation of 1.2 million and a total audience of 10.6 million people, and median household income of readers is $64,640 Id Its mission statement describes the magazine as:
Vogue serves as America’s cultural barometer, reflecting how our fashion choices intertwine with our lifestyles, social interactions, and cultural consumption It encapsulates the essence of individuality and grace while highlighting the significance of earned influence in shaping trends and perspectives Through its narrative, Vogue reveals what is essential to know and experience in the ever-evolving world of fashion and culture.
Vogue Mission Statement, reprinted in Condé Nast Media Kit, http://condenastmediakit.com/vog (last visited Feb 18, 2009)
31 See, e.g., D AVIS , supra note 5; Blumer, supra note 6
32 See, e.g., Raustiala & Sprigman, supra note 11, at 1705-11 (describing the
“Splurge vs Steal” feature of Marie Claire magazine)
33 Blumer, supra note 6; see also O RRIN E K LAPP , C OLLECTIVE S EARCH FOR I DENTITY
(1969); L ANG & L ANG , supra note 4; Dwight E Robinson, Style Changes: Cyclical, Inexorable, and Foreseeable, 53 H ARV B US R EV 121 (1975)
34 Blumer, supra note 6, at 282 tastes
This theory critiques the trickle-down model by suggesting that fashion is driven not merely by imitation of high-status individuals, but by a collective desire to be fashionable People are drawn to new, innovative, and cutting-edge trends as a way to stay relevant and connected to change When a fashion trend emerges within a specific group, others are attracted to it, not just to emulate that group, but because being fashionable is inherently appealing.
Dress serves as a powerful symbol for self-expression and communication, acting as a visual language that conveys identity, personality, and social values Consumers navigate a wide array of fashion choices, selecting styles that reflect their individuality rather than just their physical requirements These personal fashion decisions not only highlight individual expression but also contribute to broader social trends and collective identities.
Fashion trends emerge from a collective reflection of societal tastes and choices, embodying the zeitgeist Significant events, such as September 11, can profoundly influence fashion, leading to trends like military-inspired looks during times of conflict Economic downturns may also shape styles, impacting not only sales but the overall aesthetic of the period Additionally, the fashion choices of influential public figures can capture the spirit of the times and inspire new trends.
36 See Morris B Holbrook & Glenn Dixon, Mapping the Market for Fashion: Complementarity in Consumer Preferences, in T HE P SYCHOLOGY OF F ASHION 109 (Michael
R Solomon ed., 1985); see also E RVING G OFFMAN , T HE P RESENTATION OF S ELF IN
37 See, e.g., B ARTHES , supra note 5, at 59; C RANE , supra note 4
39 See, e.g., Amy M Spindler, Best of the Collections; Clothes of Quiet Inspiration,
N.Y T IMES , Jan 20, 2002, at E37 (interpreting some designers’ collections after September
In the wake of 9/11, many American designers felt compelled to reflect the pervasive anxiety that had infiltrated various aspects of American life, as highlighted by Guy Trebay in his article "Waiting for Takeoff" in the New York Times This period marked a significant shift in American iconography, with designers incorporating elements that resonated with the emotional landscape of the time.
In her July 3, 2003 article for The New York Times, Cathy Horyn highlights the influence of the Iraq War on European fashion, showcasing designs that evoke a rugged American aesthetic She notes the emergence of styles such as the virile Texas cowboy look, complete with boots and broad hats, alongside battle jackets and cartridge belts crafted from banker’s broadcloth, which made a significant impact on the Milan runways.
41 See, e.g., David Colman, When Fashion Goes for Broke, N.Y T IMES , Sept 3,
2008, at G6 (“‘Whenever the economy gets tough, fashion responds by playing it safe,’ said Jim Moore, the creative director of GQ ”); Eric Wilson, Combating the Gloom? Child’s
In 2008, designers responded to consumer pessimism by tapping into their inner child, reflecting a notable trend in the industry This approach coincided with a resurgence of themes found in children's literature, suggesting a creative strategy to uplift spirits during challenging economic times.
Fashion symbolizes the complex relationship between individual and social meanings, highlighting the tension between personal distinction and collective connection It operates within social constraints that shape individual choices in communication and expression Ultimately, fashion evolves through the interplay of personal differentiation and collective identification, reflecting both personal and social impulses.
The zeitgeist theory critiques the notion that fashion trends are merely imitations of high-status individuals, emphasizing instead that these trends arise from the collective aggregation of individual choices within society These choices, which encompass both expressive and consumptive aspects, converge on themes that mirror the prevailing social context and cultural atmosphere of the era.
Copies Versus Trends
Consumers seek trendy items, while producers supply them, leading to a dynamic interplay in fashion trends Although some believe that trendy products are merely replicas of original designs, this perspective overlooks the fact that copies have a minimal impact on the overall trend cycle Engaging with a trend, whether as a consumer or designer, often involves innovation rather than imitation.
Individuals may seek to emulate others' styles without directly copying their attire, as suggested by status theory This imitation can occur both consciously and unconsciously, influencing clothing choices without literal replication In contrast, copying involves a direct attempt to replicate the original style For instance, the resurgence of Crayola's color palette in art and fashion reflects a cultural trend towards simplicity and comfort Additionally, fashion has historically responded to economic shifts, as illustrated by changes in hemlines during recessions, highlighting the dynamic relationship between style and societal needs.
Michelle Obama has significantly influenced fashion, particularly for women over 40, as noted by Teri Agins in the Wall Street Journal, where she is described as embodying a post-feminist generation that balances femininity and power This trend extends to men as well, with figures like Barack Obama and corporate leaders adopting the suit-and-no-tie look, prompting more men to experiment with their style, as reported by Ray A Smith Additionally, the coordinated fashion choices of the Obamas during election night led to a surge in sales of red dresses, highlighting their impact on fashion trends, according to Eric Wilson in the New York Times Overall, the Obamas' style has inspired a variety of imitative practices in the fashion industry.
Consumers often engage in trends driven by a personal desire to be fashionable rather than by a need to imitate others The zeitgeist theory highlights that individuals may wish to participate in contemporary styles without emulating the lifestyle or values of the original trendsetters Instead, they may seek to connect with a shared cultural moment, which does not necessitate copying the attire of others.
Designers can create on-trend pieces by interpreting and referencing prior works rather than closely copying them This process involves quoting and commenting on earlier designs, acknowledging the influence of those works without misrepresenting them as original For instance, the iconic Chanel knit jacket has inspired numerous reinterpretations by other designers, establishing it as a classic style that captures its essence without being labeled a Chanel product Similarly, the quilted handbag from Chanel has also been reimagined, showcasing how design can evolve while respecting its origins.
Designers often draw inspiration from cultural themes and previous works, leading to the misconception that fashion lacks originality This notion parallels the criticism in music that homage and pastiche undermine originality However, it's crucial to distinguish between interpretations and copies; while close copies can diminish the value of the original and stifle creativity, interpretations can enhance and complement current trends, fostering a richer fashion landscape.
A status theory of fashion might lend to the view that trend-joining is essentially copying Accordingly, the fashion trend rises as a form of
43 See Raustiala & Sprigman, supra note 11, at 1700 (“reference”); id at 1728
44 For example, Proenza Schouler’s spring 2008 collection was widely understood to draw upon the previous work of Balenciaga designer Nicolas Ghesquiere Lau, supra note
17 There are many such examples every season Id
45 See, e.g., Amy Kover, That Looks Familiar Didn’t I Design It?, N.Y T IMES , June
Mr Schwartz of A.B.S offers valuable advice to newcomers in the fashion industry: stop whining and embrace inspiration from others He emphasizes that the concept of originality is often misleading, as small designers frequently draw their creative ideas from various sources around them Rather than waiting passively for inspiration to strike, it's essential to actively seek it out in the world.
Fashion trends often begin with emulation but may decline when elites or early adopters seek to differentiate themselves from the mainstream by adopting new styles This suggests that while trend-joining can be seen as a form of copying, it also highlights the dynamic nature of fashion, where the desire for uniqueness drives innovation and change.
Fashion is driven by more than just status; it embodies individuality and collective tastes, influenced by the spirit of the times Rather than merely imitating elites or early adopters, fashion represents a desire for novelty and connection within a community This perspective allows us to separate fashion trends from mere copying, highlighting that while copies can influence change, they are not the primary force behind innovation in fashion.
Why Promote Innovation in Fashion?
A M ODEL OF T REND A DOPTION AND P RODUCTION
This section examines fashion as a cultural phenomenon and highlights aspects that may be subject to legal regulation It seeks to clarify the previously discussed features through the lens of the zeitgeist theory, which reveals two interrelated conditions: "differentiation" and "flocking."
Differentiation and Flocking
Through fashion, people communicate and express themselves Fashionable individuals’ personal style is often described as “unique” or
Fashion serves as a vital means of self-expression for consumers, emphasizing the importance of having a diverse range of options A wide selection of fashion goods enriches the vocabulary of personal style, allowing individuals to convey unique identities This diversity not only enhances the choices available but also expands the array of meanings that can be communicated through fashion.
Consumers seek to express their unique identities through fashion, making individual differentiation a key aspect of intellectual property regulation in the industry.
Differentiation plays a crucial role in both the consumption and production of fashion, highlighting individual expression However, the essence of fashion lies in its collective nature, as it allows individuals to engage in a shared cultural movement Ultimately, fashion serves as a medium through which people can assert their uniqueness while simultaneously participating in a broader community.
Consumers often purchase new clothes not out of necessity, but because their current wardrobe feels outdated, driven by a desire to stay "in fashion." This collective behavior, known as flocking, is not solely about imitation of specific groups; rather, it reflects a longing to connect with societal trends and the present moment Engaging in this shared experience can bring pleasure, as individuals find joy in moving together in a unified direction.
The Jonas Brothers are not only making waves in the music industry but are also gaining recognition for their distinctive fashion sense, as highlighted by Arienne Thompson and Erin O’Neill in USA Today.
Diane Keaton reflects on the joy of shared experiences and themes that resonate with our times, emphasizing the pleasure found in collective engagement Her distinctive wardrobe, exemplified by a black business suit paired with blue jeans during the interview, serves as a stylish representation of her unique perspective, akin to philosophical one-liners that provoke thought and laughter.
Fashion embodies a duality of differentiation and flocking, which may seem contradictory On one hand, the innovative nature of fashion promotes unique and varied choices, making differentiation a key objective On the other hand, there are advantages to aligning with shared trends and collective styles, highlighting the appeal of flocking This balance is well articulated by Anna Wintour, editor of Vogue, who emphasizes that truly fashionable individuals manage to be both "on-trend and beyond trend while remaining authentically themselves."
In the realm of fashion, there exists a dynamic interplay between the desire for individuality and the urge to belong to a group, known as flocking People seek to participate in trends while maintaining their unique identity, which is essential for true fashion to exist A scenario where only one style dominates would lack the essence of fashion, as would a world devoid of any collective trends Ultimately, fashion thrives on the balance between collective behaviors and personal expression, highlighting the dual human desires for both connection and differentiation.
The relationship between differentiation and flocking in consumer behavior is complex and varies among individuals Some consumers may strongly prefer differentiation, avoiding trends and similarities, while others may desire to conform completely However, most individuals exhibit a blend of both preferences, which can change depending on the context For instance, a consumer might choose conservative attire to blend in but opt for unique accessories to stand out Additionally, the dynamics of differentiation and flocking can shift based on current fashion trends and the behaviors of others, influencing a consumer's overall utility Understanding this nuanced relationship is essential for analyzing consumer preferences in fashion.
59 Anna Wintour, Editor’s Letter, V OGUE , Aug 2008, at 70
Our analysis in Part II.B highlights the comparison between handbags and apparel, illustrating the dynamic relationship between the tastes for differentiation and flocking This key element of our theory emphasizes how these preferences coexist and influence consumer behavior.
The relationship between flocking and differentiation parallels that of copying and innovation in fashion Directly reproducing existing designs does not equate to innovation; if fashion solely involved creating exact replicas, it would lack creativity The urge to flock manifests in fashion through the adoption and sometimes imitation of existing styles, yet true creativity lies in the drive to differentiate—reinterpret, remix, and transform these works This differentiation is what fuels innovation in fashion, as without it, the industry would simply be about replication Our preference for differentiation stems from the belief in the incentives theory underlying intellectual property law, which highlights the impact of copying on creators' motivation.
Trend Adoption
The trend adoption process in fashion involves both differentiation and flocking, characterized by two types of attributes: trend features and differentiating features Trend features are recognizable design elements, such as a wrap dress or floral print, that attract consumers, while differentiating features are the unique design aspects that set items apart within the trend Consumers can easily identify trend features through exposure in stores or on the street, often aided by advertising and magazine coverage that highlight these trends.
Many consumers are drawn to trendy items, but they also prioritize unique features that align with their body shape, aesthetics, and personal style Fashion-conscious individuals prefer not to wear identical outfits as others; instead, they seek products that incorporate trendy elements while offering distinct characteristics.
61 Bright florals were a trend for spring 2008 Hilary Alexander, Paris Round-up,
D AILY T ELEGRAPH , Oct 8, 2007, at 20 (noting floral theme across many shows, with the specific implementation varying greatly)
In an effort to prevent fashion faux pas, DressRegistry.com enables women to register their dresses for significant events, such as inaugural balls, ensuring they don’t wear the same outfit as someone else This initiative highlights the social anxiety surrounding duplicate attire, a theme that has been humorously addressed in popular culture for many years.
Love Lucy: Lucy and Ethel Buy the Same Dress (CBS television broadcast Oct 19, 1953)
Trends catch on when designers produce a significant number of items featuring a specific style, such as floral prints, which consumers begin to recognize as a potential trend For a trend to gain traction, enough consumers must perceive that others are buying these items, leading them to make a purchase themselves based on their personal preferences A successful trend must introduce something new, as clothing is not a necessity and must compete with existing wardrobe items This phenomenon reflects a network effect in consumption, where individuals are motivated to buy if they see enough others doing so, particularly when the trend is widely available across multiple retailers The simultaneous presence of similar trend elements from various vendors, along with unique features to meet consumer desire for variety, increases the likelihood of a trend's success.
Consumers are constantly seeking novelty in fashion trends, often gravitating towards new features that distinguish current items from those of previous seasons For example, the emergence of loose-fitting jeans has replaced the dominance of skinny jeans, offering a fresh perspective Within this category of looser jeans, there exists a vast array of options, including diverse combinations of cut, color, fabric, texture, wash, and rise, allowing for unique personal expression.
Our flocking-differentiation model differs from traditional status models of trend adoption, where fashion items serve as symbols of status In these models, individuals showcase their status by purchasing and displaying luxury goods.
The phenomenon of the "it" bag exemplifies how certain handbags achieve iconic status, often resulting in long waitlists as they are selectively distributed by retailers, prioritizing high-status customers Beyond just "it" bags, luxury designer handbags generally serve to convey status, with trendy designs attracting widespread desire, thereby reinforcing their role as symbols of prestige.
The flocking-differentiation model effectively reflects consumer attitudes toward apparel, as individuals aim to stay trendy while also desiring unique styles This perspective supports the notion of allowing counterfeit designer handbags, as it highlights the balance between following fashion trends and personal differentiation among consumers.
63 See, e.g., Raustiala & Sprigman, supra note 11, at 1718 (basing the “induced obsolescence” model on the proposition that “[c]lothing is a status-conferring good”)
64 See, e.g., M ICHAEL T ONELLO , B RINGING H OME THE B IRKIN : M Y L IFE IN H OT
In the pursuit of the world's most coveted handbag, the Birkin bag, one man attempts to bypass the infamous waiting list, highlighting the lengths to which individuals will go for luxury items This theme is echoed in the HBO series "Sex and the City," where a fashionista's comical struggle to obtain her own Birkin bag results in humorous humiliation Unlike apparel, the exclusivity of the Birkin bag effectively restricts wealthy consumers from easily showcasing their status through these highly sought-after accessories.
For a trend to succeed, three key preconditions must be met: the new trend feature should be unique compared to existing articles, it must be widely adopted, and there should be enough variety among items that incorporate this trend feature to meet consumer demand for differentiation, ultimately reaching a critical mass of consumers.
Trend Production
H OW U NREGULATED C OPYING T HREATENS I NNOVATION
Our trend production model consists of two main elements: a shared trend component among market players and a unique differentiating component for each designer This framework illustrates how producers collaboratively generate trends, with the common element driving the sale of a wide range of new, fashionable products that satisfy consumers' simultaneous cravings for both trendy and distinctive items.
The emergence of fast-fashion manufacturers and retailers represents a significant shift in the fashion industry, impacting innovation This article explores the unique characteristics of fast fashion and its implications We categorize fast-fashion firms into two types: designers, who contribute to and challenge the innovation process, and copyists, whose practices jeopardize innovation by prioritizing fashion's status over its expressive qualities.
Fast-Fashion Copyists
Copying in fashion has a long history, with U.S designers in the early twentieth century and earlier French couturiers facing challenges from competitors who would sketch designs at shows or measure original garments to replicate them These imitators often used local labor to produce copies quickly, allowing them to bring their versions to market before the original designs could gain traction.
77 See Timothy F Bresnahan & Shane Greenstein, Technological Competition and the Structure of the Computer Industry, 47 J I NDUS E CON 1 (1999)
78 Sara B Marcketti & Jean L Parsons, Design Piracy and Self-Regulation: The
Fashion Originators’ Guild of America, 1932-1941, 24 C LOTHING & T EXTILES R ES J 214, 215-17 (2006); Mary Lynn Stewart, Copying and Copyrighting Haute Couture:
Democratizing Fashion, 1900-1930s, 28 F RENCH H IST S TUD 103, 108-13 (2005)
The landscape of copying has transformed dramatically, with rapid and low-cost production now possible on a large scale Unlike the music industry, where quick copying has long been established, the fashion industry has recently embraced this phenomenon Today, designs can be created from live internet broadcasts of runway shows and sent electronically to affordable overseas manufacturers The gradual relaxation of import quotas since 1995 has further reduced manufacturing costs With the aid of electronic communication and express shipping, prototypes and finished products can be launched swiftly, enabling the production of thousands of budget-friendly copies of a new design within six weeks or less.
The primary advantage of low-cost, high-scale copying lies not in rushing to market with original designs, but in the ability to observe successful products and replicate them This strategy allows copyists to select their targets after retailers have made purchasing decisions or even after products have hit the shelves and started selling Consequently, these copyists can enter the market well before a trend concludes, maximizing their chances of success.
Large retailers such as Target and H&M collaborate with prominent designers to offer trendy apparel at affordable prices by producing goods in countries like India and China, efficiently shipping them to Western stores Advanced computer systems enable real-time inventory tracking and prompt restocking of sold-out items within days Additionally, platforms like FashionTV showcase live runway shows, enhancing the visibility of fashion events worldwide.
31, 2009) (providing photographs of collections); New York Magazine, Fashion, http://video.nymag.com (last visited Oct 4, 2008) (providing video of runway shows)
The 1994 Agreement on Textiles and Clothing, a key component of the Uruguay Round trade negotiations, eliminated quotas from the previous Multifibre Arrangement of 1974 This agreement allowed for the immediate removal of some quotas while establishing a ten-year phaseout for the remaining ones Additionally, it included "safeguards" that enable importers to temporarily restrict quota increases.
82 One copyist, Forever 21, needs six weeks Ruth La Ferla, Faster Fashion, Cheaper
As of 2006, Oscar knock-off dresses are delivered to consumers in just two to four weeks, significantly faster than the four to eight weeks required five years prior, highlighting the rapid evolution of the fashion industry.
9, 2006, at G11 [hereinafter La Ferla, Thousand Knockoffs]
Raustiala and Sprigman contend that despite the passage of twenty-five years, the process of copying remains “easy and fast,” with only a minimal increase in speed during that time They recognize several factors that contribute to this heightened speed of copying, highlighting the ongoing relevance of their observations in the context of intellectual property.
Digital photography, design platforms, and the Internet, along with global manufacturing outsourcing and flexible manufacturing technologies, contribute to the fashion industry's evolution While some factors, like lower textile tariffs, may not directly impact speed, they collectively enhance scalability, reduce costs, and improve the quality of rapid production and copying processes.
83 Cf Agins, supra note 72 (“The brisk market in ideas has even given rise to the
‘knockoff consultant.’ Carole Ledesma and Nathalie Jonqua pose as ordinary shoppers while scouting boutiques in London, Paris and Milan Each month, they mail 100 pying by Forever
21 have become conflated with Forever 21 in the public mind, 90 their strategies
Retailers and manufacturers capitalize on the opportunity presented by lower-quality copies of original designs, selling these items at discounted prices while still making a profit due to reduced unit costs and the absence of design expenses Notably, Forever 21 is a prominent example of a retailer known for copying, alongside various department and specialty clothing stores These retailers source their products from mostly anonymous manufacturers, with A.B.S being a notable exception, recognized for replicating dresses worn at prestigious events like the Oscars.
Copying is not essential to the fast-fashion business model, as retailers often offer a mix of original designs and copies Leading fast-fashion brands like Zara and H&M typically avoid close copying, demonstrating that their approach involves more than just replicating styles This strategy allows them to draw inspiration from various sources while maintaining their unique brand identity.
Ms and Forever os o the hottest designs to 55 American clients.”)
84 Fast-fashion products, it is said, are made to be worn just ten times Pankaj Ghemawat & José Luis Nueno, ZARA: Fast Fashion 13 (HBS Case Stud
2006) (making this point about Zara, a fast-fashion designer)
The proposed Design Piracy Prohibition Act may significantly impact China, as fast-fashion companies could suffer losses due to their reliance on the creativity of upstream designers.
Forever 21 is frequently featured on fashion websites that highlight instances of copying, such as Fashionista, which has documented the retailer's replicas of items like a Marc Jacobs shirt, a Marni handbag, and dresses from designers including Foley & Corinna, Jonathan Saunders, and Phillip Lim The significant extent of these copying practices is evidenced by various trademark and copyright lawsuits filed against Forever 21.
Forever 21 Facing a Slew of Design Laws the suits summarized infra Table 1
87 See, e.g., Eric Wilson, Before Models Can Turn Around, Knockoffs Fly, N.Y.
T IMES , Sept 4, 2007, at A1 (describing one copyist’s sales to Macy’s and Bloomingdales, among others); Ben Winograd & Cheryl Lu-Lien Tan, Can Fashion Be Copyrighted?, W ALL
On September 11, 2006, it was reported that wholesale orders for the Ananas handbag were canceled after copyists created versions priced between 10% and 50% of the original $285 This issue is exemplified by specialty retailers, such as Abercrombie & Fitch, which copied a bag designed by Nicole Dreyfuss.
10, 2007, http://www.counterfeitchic.com/2007/05/karmic_relief.php (last visited Feb 18,
2009) (describing Forth & Towne copy of Narcis cribi g $130 Bebe copy of $1700 Versace dress)
88 A.B.S., “[t]he uncontested champion of red-carpet knockoffs,” sells to leading department stores La Ferla, Thousand Knockoffs, supra note 82 By 2006, the Oscar- knockoff bu on Id
89 Keith Naughton, H&M’s Material Girls: The Retailer Speeds Ahead with Fast
In an exclusive interview with Newsweek on June 10, 2007, H&M's chief designer emphasized that the brand does not simply replicate runway trends, but rather draws inspiration from cultural movements, celebrity styles, and the latest happenings on the catwalk.
Fashion knockoffs often emerge as down-market interpretations of high-end designer motifs, with brands like H&M quickly bringing trendy products to market Unlike direct copies, these adaptations are created by in-house designers who respond to the latest trends while maintaining a distinct style.
The Threat to Innovation
Harmful copying
Copyists often seek designs that are straightforward to replicate, such as the floral-patterned dress by Dana Foley and Anna Corinna, which was technically simple to copy due to its use of basic fabrics and lack of intricate tailoring or embellishments The absence of a visible brand logo minimized the risk of trademark infringement, and the design did not strongly evoke the identity of F&C, making it less susceptible to trade dress protection These characteristics render the dress an appealing target for copyists, as illustrated by the comparison between the original and a copy produced by Forever 21.
For midrange designers like F&C, the sales of copycat designs can significantly diminish the sales of original pieces The original dresses are priced in the hundreds, making them accessible to customers who might otherwise purchase copies Additionally, aggressive retail strategies often facilitate this substitution, further impacting the market for original designs.
98 See La Ferla, Faster Fashion, supra note 82 (describing dress)
99 Difficult-to-copy details are not an absolute bar because the copyist could omit or alter them But such changes are costly and risky, since the copyist cannot tell, without incurring substantial cost, whether the detail is essential to the design’s appeal Moreover, accuracy may be important to those consumers or retailers who know of the original and explicitly seek a close copy
100 La Ferla, Faster Fashion, supra note 82 (noting that the original and copy were
The floral print featured on the garments, if deemed original enough to meet copyright standards, could serve as a foundation for a potential legal claim against Forever 21, given the striking similarities in design elements such as the fluid cut and noodle straps.
A notable decline in monthly revenue for accessory designers, dropping from $50,000 to $10,000 due to imitation, highlights the impact of counterfeiting in the fashion industry Additionally, customers have returned F&C dresses after encountering copies, further illustrating the repercussions of imitation on brand integrity This situation is reminiscent of the legal case William Filene’s Sons Co v Fashion Originators’ Guild of Am., which underscores the ongoing challenges faced by original designers in protecting their creations.
In a 1937 ruling by the 1st Circuit, it was highlighted that when customers discover a lower price for a dress at a different store, they may perceive the original retailer as lacking the ability to curate unique styles, leading them to feel overcharged This perception can result in returned dresses and lost customers.
102 Even customers of modest means might “trade up.” For a discussion of this phenomenon, see M ICHAEL J S ILVERSTEIN ET AL , T RADING U P : T HE N EW A MERICAN
L UXURY 23-25 (2003) rather than the final consumer 103 Either way, the profits of the original designer can be much reduced
Midrange designers face significant challenges with design copying, leading to a high number of complaints This issue is compounded by their frequent legal battles against fast-fashion brands like Forever 21, where they attempt to protect their work through lawsuits alleging copyright or trade dress violations due to inadequate design protection in current laws.
The rise of inexpensive imitations not only replaces original sales but also diminishes demand for authentic designs, driven by a "snob" effect where consumers seek distinction from those perceived as lower-status This phenomenon represents a negative externality associated with overuse, akin to issues seen in trademark and copyright The impact intensifies when consumers compare original designs with their copies across various stores or different sections of the same department store.
Distorting innovation
Reduced profits are likely to negatively impact innovation, a common conclusion in economic theory Additionally, the lack of protection against design copying, alongside existing trademark and trade dress protections, skews the innovation landscape Designers without protection face significant profitability challenges, discouraging them from innovating or even entering the market Conversely, those protected by trademark and trade dress tend to innovate in ways that leverage their legal advantages, ultimately favoring established designers in the innovation process.
103 See, e.g., Winograd & Tan, supra note 87 (describing cancelled wholesale orders for Ananas bag); Felix Salmon, Market Movers: Susan Scafidi on Copyrighting Fashion,
On September 19, 2007, Susan Scafidi discussed the issue of copyright in the fashion industry, highlighting instances where orders were placed with copyists instead of the original designers This raises important questions about intellectual property rights and the impact of copying on creative professionals in fashion.
Numerous designers have faced the unsettling experience of discovering that their original creations are being replicated by fast fashion retailers at significantly lower prices For instance, a designer learned that a nearly identical version of her necklace was being sold by a local accessories distributor, while another designer found her dress being copied by Forever 21 alongside her original piece on a fashion blog Additionally, the Ananas bag's retail orders were canceled after competitors introduced similar, more affordable designs, highlighting the challenges designers encounter in protecting their unique work from imitation.
The pattern of design piracy cases, represented through copyright or trademark suits, serves as an imperfect proxy for understanding the extent of copying in the fashion industry This data does not capture instances where originators were unable to pursue legal action against copying Furthermore, these lawsuits often focus on the most financially damaging instances of copying, where the costs are significant enough to prompt a lawsuit despite uncertain outcomes.
106 See Leibenstein, supra note 3, at 189
107 See, e.g., William M Landes & Richard A Posner, Indefinitely Renewable Copyright, 70 U C HI L R EV 471, 485-86 (2003)
The lack of design protection under intellectual property law poses challenges for small and emerging designers, limiting their innovation potential While some forms of intellectual property offer certain protections, the absence of specific design safeguards influences designers' choices, encouraging them to prioritize certain product types over others.
Trade dress protects distinctive product design features that identify the source, such as the unique hardware of a Coach handbag The Supreme Court has debated whether trade dress protection necessitates proving "secondary meaning"—the consumer's recognition of a feature as linked to its maker—or if inherent distinctiveness suffices In an initial ruling outside fashion, the Court determined that secondary meaning wasn't required, acknowledging that such a standard could burden startups, which lack the resources of established companies However, it later mandated that secondary meaning is essential for trade dress in apparel and similar products, ultimately benefiting established firms capable of investing in brand recognition.
Trademark significantly enhances incumbency bias by providing robust protection against copying for legitimate producers Designers recognize the importance of logos as effective anti-copying tools The absence of design protection, coupled with trademark rights, benefits firms with strong trademarks, leading to an increased production of trademarked goods, particularly those featuring logos For instance, Gucci can prevent copies of its designs that incorporate its iconic interlocked “G’s,” while similar designs without logos remain unprotected, incentivizing the use of logos This dynamic also promotes the creation of products, like handbags, where logos and trade dress play a crucial role.
Karl Lagerfeld emphasized that copying can significantly harm small businesses, while larger houses like Chanel are less affected by such practices.
110 Coach, Inc v We Care Trading Co., 67 F App’x 626, 627 (2d Cir 2002) (per curiam)
111 Two Pesos, Inc v Taco Cabana, Inc., 505 U.S 763, 775 (1992); see also id at
774 (rejecting a secondary meaning requirement out of concern for its “anticompetitive effects”)
112 Wal-Mart Stores, Inc v Samara Bros., Inc., 529 U.S 205, 215-16 (2000) The
Samara Brothers Court did not address its earlier Two Pesos dicta
113 See, e.g., Complaint, Louis Vuitton v Limited Brands, No 05-cv-3980 (S.D.N.Y
Apr 13, 2005) (asserting trade dress in a new line of bags); Scafidi, supra note 10, at 121
Giorgio Armani, initially skeptical about using monograms as decorative elements, ultimately agreed to incorporate an eagle logo for Emporio Armani to help deter counterfeiters, acknowledging that it wasn't a guaranteed solution.
115 Scafidi, supra note 10, at 121-22; cf Raustiala & Sprigman, supra note 11, at
In 1723, it was recognized that trademarks could be used to restrict the copying of designs, leading to a phenomenon known as "logoification." This trend influences the way fashion communicates, shifting its focus from conveying a variety of messages to emphasizing status and exclusivity.
Incumbents in the luxury goods sector enjoy significant advantages due to the unique materials and finishes used in their products, making them difficult to replicate through low-cost outsourcing Investments in brand image provide additional protection against imitation, fostering customer loyalty and enhancing the retail experience This luxury image not only insulates high-end products from harmful copying but also creates uncertainty for potential copyists regarding the source of an item's appeal—whether it lies in its design or the exclusive purchasing experience Larger companies can leverage their investments across a wide range of products, while less-established designers face challenges in competing effectively.
116 Copyright introduces a secondary distortion Copyright protects distinctive fabric patterns and physically separable ornaments, thus encouraging a designer to favor patterns over solids or investments to develop a new design
117 Bespoke copying, with high-cost manufacture and close fidelity, is still feasible
118 See, e.g., Binkley, supra note 73 (noting designers’ increasing use of embroidery and other embellishments as a way to maintain a differentiated product); Reena Jana, Put a
Stuart Weitzman's innovative use of titanium-reinforced heels makes his designs difficult to replicate, as cheaper materials result in easily breakable copies This unique feature highlights the brand's commitment to quality and distinctiveness in the luxury footwear market.
Other’s a Snip at £114, M AIL ON S UNDAY (London), Mar 11, 2007, at 68 (describing the £23,484 Louis Vuitton Tribute Patchwork bag, made from fifteen different Louis Vuitton bags, partly to deter counterfeiters)
Some consumers maintain a positive valuation of a bag's authenticity despite the presence of high-quality copies that can deceive even trained salespeople The enjoyment derived from owning an authentic Louis Vuitton handbag stems from the purchaser's awareness of its genuine status, akin to the preference for authentic antique furniture over modern reproductions While certain classic fashion items may gain an aura of exclusivity amid knockoffs, most fashion pieces do not achieve this elevated status.
Charlize Theron once wore a highly praised Christian Dior dress at the Oscars, which exemplified luxury and exclusivity A.B.S produced a more affordable replica, targeting promgoers, with the original dress estimated to cost between $15,000 and $20,000, while the copy was priced at only $200 to $300 This situation illustrates a clear distinction in the market: buyers of the replica could not afford the original, and those who could afford the original typically chose to avoid the replica due to its inferior quality and lower price point.
For major brands like Christian Dior, the ready-to-wear collection serves as a marketing tool that maintains brand visibility, ultimately boosting sales of high-margin products like handbags and perfumes that rely on a strong brand image Consequently, a decrease in brand appropriability may lead designers to create bold yet impractical designs.
Is Piracy Really Beneficial?
T AILORED P ROTECTION FOR O RIGINAL D ESIGNS
The analysis highlights that the ease of copying negatively impacts innovation by diminishing its quantity and altering its direction, which ultimately hinders the development of unique communicative tools To address this issue, our proposed policy seeks to protect differentiated innovation by prohibiting close copies while allowing for various forms of inspiration, homage, referencing, and quotation The core principle guiding this approach is to prevent an overwhelming complexity of rights that could arise from having excessive and multiple rightsholders.
Our analysis suggests a targeted new right that safeguards designers from direct copies of their designs, while still allowing for broader similarities that often occur in the design industry.
144 See Marcketti & Parsons, supra note 78, at 226
145 In particular, many manufacturers and retailers, including department stores, benefit from copying
146 For a discussion of such strategies, see Barak Y Orbach, The Durapolist Puzzle:
Monopoly Power in Durable-Goods Markets, 21 Y ALE J ON R EG 67, 91-92 (2004)
Designers' bridge lines, as suggested by RS and discussed by Raustiala & Sprigman, aim to address market competition; however, the example of Armani is not entirely relevant for close copying Armani's five lines—Giorgio Armani, Armani Collezioni, Armani Jeans, Emporio Armani, and Armani Exchange—reflect the brand's style but do not provide identical designs at lower prices This concern for brand image may restrict the potential for self-cannibalization, as noted by Barnett.
In "The Gridlock Economy" (2008), Michael Heller emphasizes the importance of tailored protections for the fashion industry, aligning with other scholars advocating for industry-specific solutions to regulate innovation effectively.
Part IV.A describes the scope of the proposed new right Part IV.B considers some objections to our proposal.
The Scope of the Right
The proposed right introduces two key elements: it grants copyright protection to original apparel designs, which are currently not eligible for copyright, and it specifies that copyright protection is denied when a new work, despite being deemed "substantially similar," is also significantly different from the original.
The Copyright Act protects "useful articles," like apparel, only if their protected features can be identified separately from their utilitarian functions, a principle known as "separability." This interpretation of separability affects items that possess both functional and expressive elements, such as clothing and architectural designs, leading to the exclusion of certain apparel from copyright protection.
Separability can be categorized into physical and conceptual forms Physical separability occurs when an article retains its utility even when the protectable element is removed, allowing the separated component to function as an independent work of art For instance, an appliqué sewn onto a sweater demonstrates physical separability, while the cut, color, and overall appearance of the apparel do not qualify for such protection.
149 See, e.g., Dan L Burk & Mark A Lemley, Policy Levers in Patent Law, 89 V A
L R EV 1575 (2003) (advocating industry-specific judicial interpretation of patent doctrines); C Scott Hemphill, Paying for Delay: Pharmaceutical Patent Settlement as a
Regulatory Design Problem, 81 N.Y.U L R EV 1553 (2006) (offering an industry-specific approach to antitrust law); William Fisher, The Disaggregation of Intellectual Property,
H ARV L B ULL , Summer 2004 (offering a cautious endorsement of industry-specific intellectual property rules)
150 17 U.S.C § 101 (2006) (defining a “useful article” as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information”)
151 Id For a historical account of this state of affairs, see 1 W ILLIAM F P ATRY ,
152 1 P AUL G OLDSTEIN , G OLDSTEIN ON C OPYRIGHT § 2.5.3 (3d ed 2005 & 2008 Supp.)
Many courts acknowledge the concept of conceptual separability, although defining its limits poses significant challenges There is considerable debate among courts and commentators regarding the appropriate scope of this doctrine A broader interpretation of conceptual separability could offer protection for various designs under existing copyright law, allowing courts to classify certain design elements of garments as distinct from their functional use However, similar to architectural works, design features are frequently perceived as inseparable from their practical purposes, complicating the application of this principle.
To enhance copyright protection for fashion designs, it is proposed that they be classified as a unique category of copyrightable subject matter, separate from the current separability regime This approach mirrors past legislative actions, such as Congress's inclusion of architectural works in 1990, and aims to provide a more comprehensive solution for safeguarding original fashion designs through copyright law.
153 Compare Pivot Point Int’l, Inc v Charlene Prods., Inc., 372 F.3d 913, 931 (7th
Cir 2004) (en banc) (recognizing conceptual separability), and Kieselstein-Cord v Accessories by Pearl, Inc., 632 F.2d 989, 993 (2d Cir 1980) (same), with Esquire, Inc v Ringer, 591 F.2d 796, 803 (D.C Cir 1978) (limiting separability to physical separability)
See also 1 M ELVILLE B N IMMER & D AVID N IMMER , N IMMER ON C OPYRIGHT § 2.08[B][3]
In 2008, it was concluded that conceptual separability is a valid approach in copyright law, as the legislative history of the 1976 Act references the earlier case of Mazer v Stein, which recognized the concept of separability without requiring physical separation.
The Seventh Circuit recently identified six potential tests in Pivot Point to distinguish between artistic and utilitarian features of an article These include: [1] assessing whether the artistic features are primary while utilitarian aspects are subsidiary; [2] determining if the article evokes a concept separate from its utilitarian function; [3] evaluating if the article remains marketable due to its aesthetic qualities; [4] considering whether the artistic design is not significantly influenced by functional considerations; [5] examining if the artistic features can stand alone as a work of art, making the article equally useful without them; and [6] confirming that the artistic features are not utilitarian in nature.
In Pivot Point, 372 F.3d at 923, the Seventh Circuit established a test for separability, asserting that artistic features must be able to exist independently from their utilitarian purpose This determination hinges on whether the design elements showcase the designer's artistic judgment, independent of functional considerations (Id at 931) For a comprehensive overview of this complex area, refer to 1 NIMMER & NIMMER, § 2.08[B][3].
155 See Architectural Works Copyright Protection Act, Pub L No 101-650 § 703,
104 Stat 5089, 5133 (1990) (adding “architectural works” to subject matter of copyright); id § 702(a), 104 Stat at 5133 (adding “architectural work” to the definitions in 17 U.S.C §
101); id § 704(a), 104 Stat at 5133 (placing limits on the copyright in an architectural work, including denial of protection for certain pictorial representations); Donald Frederick Evans
& Assocs., Inc v Cont’l Homes, Inc., 785 F.2d 897, 901 n.7 (11th Cir 1986); 1 N IMMER &
Prior to 1990, United States copyright law did not extend protection to structures, except for a limited number that lacked utilitarian functions However, the legal framework has since evolved to provide copyright protection that now parallels the protections granted to buildings and architectural plans.
Infringement in copyright law primarily concerns the originality of design elements Standard features, such as pinstripes or A-line silhouettes, are not protected by copyright, meaning their use in subsequent works does not constitute infringement Copyright law specifically protects only the unique and original aspects of a work, distinguishing them from common design elements.
Substantial similarity between two works can lead to copyright infringement, encompassing traditional copyrighted materials like books, art, film, and music, as well as newer categories such as architectural designs The degree of substantial similarity is context-dependent, and in cases where copyright exists over a compilation of unprotectable elements, the protection is often considered "thin," safeguarding the creator only against closely resembling copies A proposed bill aimed at protecting original fashion designs also incorporates the concept of substantial similarity.
Our analysis suggests implementing a more focused rule that prohibits only close copies to promote differentiation among designers If a designer incorporates protectable elements from a previous work but also introduces significant alterations, they should not be held liable Additionally, a thin compilation copyright should not limit the concept of substantial similarity.
The architectural amendment was partially implemented to align with the Berne Convention and is also seen as essential for meeting TRIPS requirements regarding industrial design The TRIPS agreement, established during the Uruguay Round, mandates that member countries protect independently created industrial designs that are either new or original.
United States design patents safeguard industrial designs that are deemed "new." However, the TRIPS agreement indicates that designs may also be protected if they are original, even if they lack novelty This interpretation aligns with Jerome H Reichman's analysis, which emphasizes the necessity for universal minimum standards of intellectual property protection under the TRIPS framework Additionally, extending copyright could provide a means to protect originality independently of the novelty requirement.
158 Id § 101 (including definition for “architectural works,” and extending “pictorial, graphic, and sculptural works” to include architectural plans); id § 102 (including
“architectural works” in the coverage of copyright)
In cases where copyright protection is minimal, the threshold for establishing "substantial similarity" between works becomes higher, as noted by legal experts This principle is illustrated in the case of Intervest Construction, Inc v Canterbury Estate Homes, Inc., highlighting the complexities involved in copyright infringement assessments.