The Knock Against Knockoffs

Snazzy but thrifty dressers no longer have to wait for knockoffs of the latest fashions, The New York Times reports. Now that photographs of Fashion Week models are available immediately for analysis by software that allows overseas factories to produce simulations of designer clothing within a couple of months, the knockoffs can get to stores before the originals do. You might think this development would lead designers to rethink the practice of unveiling their latest creations in early September and delivering them to stores in February, nearly half a year later. Or to consider reducing the huge price gap between their clothing and the stuff that looks just like it. Instead they are whining about the theft of their intellectual property and citing their competitors' efficiency as yet another reason to establish a copyright in clothing design. The Times, though it seems to admire the cleverness of the clothing copycats, implicitly sides with the designers:

Interviews with executives at a number of companies that specialize in designing for the private labels of department stores and other chains reveal a highly competitive network of factories, which use the latest technology to reproduce designer looks with the impunity and speed of Robin Hood. Their copies do not violate existing law.

Their copies do not violate existing law. That's a statement that could accurately be made about every noncriminal business practice. Another way of putting it is that the designer knockoff business—unlike, say, stealing from the rich and giving to the poor (which the Times likes when it's done by the government)—is perfectly legal. The fact that it is legal, of course, does not necessarily mean that it should be, and the designers are right when they say their creations are in many ways similar to such copyright-protected works as books, music, and movies. But to me this is a reason to question the legal treatment of those works rather than a reason to give clothing designers copyright protection as well.

In the case of clothing design, the lack of legally protected monopolies does not seem to have stifled creativity. To the contrary, it has encouraged continual innovation to stay ahead of the knockoffs. And fostering innovation was, after all, the concern that motivated the Framers when they gave Congress the power to grant patents and copyrights, the aim being "to promote the Progress of Science and useful Arts." Without copyright protection, designers still have at least two advantages over their imitators:

1) They can get to the store first (assuming they're willing to shorten the traditional lag between Fashion Week and delivery to retailers).

2) Some people insist on buying the genuine article even when the knockoffs are indistinguishable, and they are willing to pay more (a lot more) for the designer label. Preserving this advantage requires trademark protection, a form of fraud prevention that need not rely on the concept of intellectual property.

Both of these advantages, in one form or another, apply to other kinds of creative work. J.K. Rowling would still sell a lot of books even if others were free to make and sell copies; fans of Justin Timberlake (I assume) want to see him in concert, not a guy who looks and sounds like him; and art collectors pay much more for originals than they do for copies (authorized or not). When these advantages are combined with copy restrictions on digital products (the advantages of which have to be weighed against their potential to irritate consumers), I'm not sure there's much of a utilitarian case left for copyright protection.

That leaves the moral case, which I've never found entirely persuasive. It seems to me that passing off someone else's work as your own, or vice versa, should be illegal because it's a form of fraud, not because it's theft of intellectual property. But there's nothing necessarily fraudulent about selling unauthorized copies. The idea of owning ideas (excuse me, the expression of ideas) raises all sorts of problems, impinging on ownership of physical property (copiers and computers, for example) and on the creation of new intellectual products (which is why copyrights have terms, the length of which is inherently arbitrary yet treated as sacrosanct by copyright holders). As someone whose work is entirely nontangible and who receives money from reprint fees and other artifacts of copyright law, I am not completely unsympathetic to the argument for intellectual property. But despite the propaganda from copyright holders likening unauthorized downloads to shoplifting, it's hard for me to view my right to stop you from running one of my columns without permission (or, to be more accurate, my syndicate's right to do so) the same way I view my right to stop you from entering my home or borrowing my car without permission.

Likewise, designers might insist that copying their patterns is like stealing their dresses, but I don't buy it. As the Times notes, neither do the women who wear knockoffs or the stores that sell them, which include major chains that also sell designer originals.

In the March 2003 issue of reason, Douglas Clement asked whether innovation requires intellectual property rights.