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Can Fashion Designers Really Protect Their Work?

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On Friday, April 29, 2011, 400 million people across the world logged on to YouTube to watch a live stream of the nuptials between Prince William and Kate Middleton. Meanwhile, even more people were watching the royal wedding on television, other websites, and even in person. For days, the talk around the world was two things—Princess Kate’s dress and how great her little sister Pippa’s bum looked in hers. All this news coverage was surely great for designer Sarah Burton of Alexander McQueen, but within hours of the broadcast, sites began popping up with royal wedding dress replicas, and Burton didn’t see a dime for these sales of her creation. Designers are fed up with copycats; every runway show, award ceremony, or public event causes an outbreak of “get it for less” styles, a phenomenon which many people feel is not right. Jason Wu watched as manufacturers made money off the custom gown he designed for Michelle Obama for the Inaugural Ball. With a quick Google search, you could be the owner of the Carolina Herrera-designed wedding gown worn by Bella Swan in the famous Twilight franchise. That is why the members of the Council of Fashion Designers of America have been going to Washington to plea the case of the Design Piracy Prohibition Act (DPPA), an act that will once and for all allow fashion designers to copyright their designs. The act seems great for all; other artists can protect their work, so why not designers? However, the act has now been shut down by Congress twice. Many critics see the flaws behind the DPPA—they recognize how it could promote elitism in fashion, counteract industry norms, and really harm independent designers with limited funds.

One of the major issues behind the DPPA is the potential to limit goods to customers who might not have the financial means to obtain these clothing items otherwise. With the economy in turmoil, many fast fashion companies, like Forever 21, have thrived off of their ability to offer trendy items at incredibly low prices. However, Forever 21 and others are constantly fighting copyright infringement allegations. The industry is changing, and the DPPA will slow down its rapid evolution. Previously, high fashion was only available to the average consumer once a month through fashion magazines, and only the incredibly wealthy or industry insiders had the privilege to shop high-end collections or see a runway show. With today’s technology, anyone with an Internet connection can see the latest Prada designs just seconds after they debut on the runway. Fashion is no longer solely meant for the upper class—it’s for anyone and everyone that chooses to take an interest. The DPPA would eliminate a large range of customers from fashions, which ultimately could damage our economy further.

David Wolfe, creative director for Doneger Creative Services, says that the fashion industry thrives “because of, and not in spite of, a lack of copyright protection.” The idea of copying and imitating is an industry standard, and not one that limits creativity. Consumers want what is in style—they want the latest trends. But as quick as the trends come, they go. This is what trend analysts refer to as the “trickle-down theory” in which a garment appears on a runway or on a celebrity and then becomes obtainable at a high price, which then permeates the market at a low- price point. By the time everyone can afford it and wear it, the high-end designers are forced to move on to something else. Wolfe, and others, fears that if design copying was to be outlawed, designers would become lazy, as they would no longer be forced to search for new things. Copying is so ingrained into the fashion industry that it has become the industry standard. At the Fashion Institute of Design and Merchandising, students are encouraged to “work smart, not hard,” according to instructor Shell Thompson. This doesn’t mean to be lazy in your designs and not do the work, but to not try and recreate the wheel. Research the industry, know what is selling, and design what people want. The DPPA would prevent designers from being able to work smart; while artistically this might be fine, it is ignorant and naive not to see fashion as what it is, a multi-billion dollar business industry.

One of the biggest concerns with the DPPA is focusing on who it would actually help. This became apparent in 2009 when the most outspoken of DPPA supporters, Diane Von Furstenberg, was exposed for having copied the design of independent Canadian design firm, Mercy. The incident was quickly covered up, but people began to question which parties were really being protected under the DPPA (How This Jacket Got Jacked). Allan Kohl, Co-Chair of the Visual Resources Association and Intellectual Property Rights Committee, explains this nicely by saying, “…the DPPA would probably benefit mostly big-name established designers and large firms with deep pockets by giving them the ability to scare smaller players out of the arena through threats of lawsuits, which, even if baseless, would be troublesome and expensive to litigate.” While the DPPA would help the large cooperate design houses, like those of DVF, it is only because these companies have the funds to copyright their work. Independent designers are working on tight budgets, even if they do have the funds to obtain the initial copyright, they still would have to pay to pursue defense of their creations. In addition to fearing legal fees, many of these companies fear the outcomes of fighting a larger company. These design houses have a lot of pull in the industry, and small companies fear being blacklisted if they were to pursue litigation. 

While the DPPA has yet to be passed, the Council of Fashion Designers of America and others are putting continuing pressure on Congress to do something about fashion copyright laws. However, the DPPA raises questions about whether designers even deserve intellectual property rights to their designs. Copyrighting is a complicated business, and it is becoming increasing difficult to distinguish between something that has been copied or merely inspired by another’s work. It is also becoming difficult to pinpoint the origins of a specific look or trend. Additionally, the high cost of the lawsuits associated with copyrights is a fearsome threat to the countless small designers that help to drive the industry. Questioning the validity of the DPPA really leads one to question the value of fashion. Is fashion an art that requires protection, like a beautiful painting or poem, or is it a necessity that can should be copied for convenience and ease, like a toaster bought at Walmart? Unless substantial alterations are made to the concept of a copyright and the means of copyright infringement litigations, the Design Piracy Prohibition Act cannot be passed in Congress.

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