Susan Scafidi penned an op-ed for Business of Fashion about copyright protection for fashion designers.
Across international jurisdictions, fashion design protection is one of the least harmonised areas of intellectual property law. While designers’ names and logos are almost universally covered by trademark law, the physical articles of apparel and accessories to which they are attached often have no protection at all. France offers full copyright protection to fashion on an equal basis with other artistic media, and many other nations with influential or aspiring design sectors — including all of Europe, Japan and India — provide a significant level of design protection to new creations. However, in countries including the US, brands must make do with scraps of legal protection for limited aspects of fashion design, such as fabric prints.
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The consequences of this systemic breakdown are especially severe for emerging and independent designers. Established fashion houses suffer the consequences of copying as well, but, to an extent, they can hide behind the strength of their labels — which are protected by trademark law. By contrast, lesser-known designers have to rely on selling their designs rather than their names — and those who steal emerging designers’ work typically copy everything but the tell-tale logos, leaving even well-intentioned consumers unaware they are purchasing copies.
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There are glimmers of hope on the horizon for creative designers, however. In the absence of worldwide legal protection, many designers have devised self-help methods of protection, most recently by turning the power of the Internet against copyists who have used it both to hunt for new targets and to sell their knock-offs. But social shaming and public outcry only work against a background of potential legal enforcement, or when the copyist has a reputation to lose. Some countries, including the US, have considered modernising their intellectual property laws to support their creative design sectors, and those conversations are likely to continue.
Fashion’s current debate over whether to embrace direct-to-consumer shows may mitigate both the disconnect between promoting styles that won’t appear in stores for six months and copyists’ exploitation of the traditional fashion calendar. However, while the new immediacy may hinder design piracy, it may also presage a return to the old secrecy, when industrial espionage prevailed on Seventh Avenue in New York and other garment centres around the world — only this time with universally available mobile phone cameras. Even if attempts to reveal new collections only to trusted industry insiders effectively thwart copyists, the public benefits of a strong system of intellectual property protection — encouraging transparency and creative exchange, while allowing designers to reap what they ‘sew’ — will be lost.
Most property is protected by a system of both law and locks. It’s illegal for a thief to enter your home and steal your handbag, but chances are you lock the door anyway. Fashion designers – like authors, musicians, filmmakers and other creative contributors to the global economy whose work is supported by intellectual property law – deserve at least a minimum level of legal protection.
