Be Serious, Dahlink


Via Majikthise we learn that Rep. Bob Goodlatte (R-Starbucks) is pushing legislation to extend copyright to the world of high fashion, which currently operates outside its protection. (Note that this is separate from trademark and fraud protection: It's already illegal to sew a gator on a K-Mart polo and try to sell it as a Lacoste.) The idea is to stop mass-market department stores from putting out low-priced house-brand garments in the style of big-name designers.

First: Is this necessary? The idea behind intellectual property is supposed to be to provide creators with an incentive to innovate. Are we supposed to believe that Sears is digging into Armani's profits to the point where they're putting out fewer items each year? Are we supposed to believe that this effect is so pronounced that the loss in novelty outweighs the benefit to consumers of inexpensive, attractive clothing?

That's a pretty obvious "no" on both counts, largely because these aren't really overlapping markets for the most part. The theory behind copyright in, say, software and music is that the copy of the new Flaming Lips album or the latest version of Photoshop you download off Limewire really is a perfect substitute for the copy you'd buy off iTunes or from Adobe. (A better substitute in the former case, actually, since it's not bogged down with obnoxious DRM.) Many people who would've ponied up the cash for the genuine article will be perfectly happy with the copy, depriving the creator of a sale. But that's not really what's going on with fashion: The average guy who buys a $150 Paul Smith knockoff blazer at Men's Warehouse was not, in fact, about to drop five times that on the original.

If anything, there's an argument that knock-offs (again, I mean imitations here, not counterfeits) spur rather than depress innovation: As a certain "look" percolates down to the mass-market, people who want to stay fashion-forward demand something new and different next season to distinguish themselves from the H&M-clad proletariat. The result is probably acutally more, not less, creativity.

I'm also a little curious how, exactly, you'd enforce this. I have trouble imagining a standard that isn't either meaninglessly narrow (prohibiting only exact copies, which knockoffs aren't) or stiflingly broad. The shirt I'm wearing right now, for example, is a blue-and-white striped button-down with a sort of funky yellow/red/pink pattern on the collar and cuffs. Now, even from shirt-to-shirt in the same style from the same designer, they're going to be different because different parts of the patterened fabric are getting used for the cuffs and collar. But say you ban anyone using that exact set of fabrics. How close does another shirt have to be before it's too close? Does anyone who wants to mix stripes with a bright patterened collar now have to ask Etro for permission? Even a more narrowly drawn standard of that sort is going to cover a huge range of looks. And whose judgement determines when the patterns are too close? Looks that seem quite different to, say, a fashion critic might appear pretty much the same to someone who doesn't dash for the Style section each weekend. This image from the Times article linked above shows a designer bag an an Urban Outfitters knockoff, and while they're obviously using very similar materials, they're still also pretty different looking bags. If the former excludes the latter under new legislation, both the variety of looks available at any given time (as mass-market stores switch to producing stuff too bland to be regarded as a knockoff of anything in particular) and the incentive to innovate season-to-season will be severely diminished.

The always-fashionable Kerry Howley wrote in praise of knockoffs last spring—though the article, like the little black dress, is timeless.