If you watch the fashion pages, you already know that last year’s must-have item was designer Roland Mouret’s “Galaxy” dress, the curve-accentuating retro number in which Scarlett Johansson strode down the red carpet at the 2005 Oscars. Thanks to a thriving knock-off industry, today you can stroll into the U.K.’s TopShop or browse eBay for bargain copies so close that even Edith Head would have trouble telling the difference.
The Council of Fashion Designers of America is hoping a new proposal to extend copyright protection to clothing designs will compel the most blatant borrowers to, well, knock it off.
Traditionally, fashion has been exempt from American copyright laws, on the grounds that clothing is primarily a functional rather than creative good. The Design Piracy Prohibition Act, introduced by Rep. Bob Goodlatte (R-Va.) would change that, creating a limited three-year term of protection for original clothing designs. Instead of working under the traditional copyright framework, where terms are far longer, the bill would amend a statute granting similar short-term protection to boat hull designs.
Southern Methodist University law professor Susan Scafidi regards the proposal as a “creative and self restrained effort to correct a cultural imbalance”: the exclusion of fashion from America’s intellectual property rubric—an exclusion, Scafidi argues, that’s partly rooted in the fact that fashion has historically been “gendered female, considered a craft and not an art.” Meanwhile, the fact that the fashion industry has remained so vibrant for so long has led many to wonder whether the law governing books and movies should look more like the law governing fashion, rather than the other way around.
There’s also the possibility that fashion simply follows different rules. In this area, law professors Kal Raustiala of UCLA and Christopher Sprigman of the University of Virginia argue in a recent paper, copying may actually spur innovation, as imitations of each season’s hot design creates “induced obsolescence,” pushing consumers to demand new and different looks with which to distinguish themselves.