ECR Contributor Erika Jarvis investigates the phenomenon of extensive copying within the fashion industry, where garments and designs are not protected by copyright laws. Surprisingly, this atmosphere of open-faced imitation has helped to foster the careers of various designers rather than hinder them.
At a charity event held in New York late last year, the guest of honour, American designer Ralph Lauren, was interviewed on stage by the television icon, Oprah Winfrey. Perched on opposing chairs on a vast, polished stage at The Lincoln Centre, and in the company of celebrities like Barbara Walters and Michael J. Fox (who had paid tens of thousands of dollars to be there), she asked him a simple question that came with a surprising answer.
"How do you keep reinventing?"
"You copy," he answered, honestly. "Forty-five years of copying, that’s why I’m here."
The Piracy Paradox
In a paper titled The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, professors at the University of Virginia and UCLA, Chris Sprigman and Kal Raustiaula, explored the so-called paradox of endless creativity in fashion despite the lack of intellectual property protection, and a culture of constant borrowing.
"The fashion industry itself is surprisingly quiescent on the subject of copying," they wrote in their paper, published in 2006. "Fashion firms take steps to protect the value of their trademarked brands, but appear to accept appropriation of their original designs as a fact of life. Design copying is widely accepted, occasionally complained about, but more often celebrated as 'homage' rather than attacked as 'piracy.'"
Sprigman and Raustiaula's argument is that copying—while frustrating—isn't just good for creativity, it's surprisingly good for business.
Copyright (Or The Lack Thereof) In Fashion
It's been over 70 years since the design of a garment could be protected under copyright laws in North America. It comes from the rule that denies copyright protection to so-called "useful articles . . . in which creative expression is compounded with practical utility (Sprigman and Raustiaula, 2006)."
The subject has been revisited recently thanks to the lawsuit brought against French fashion house, Louis Vuitton, regarding a pair of heels featuring a bright red sole—shorthand in the fashion world for the designer shoe brand, Louboutin to any fashionista worth her salt. The judge in the case ruled against Louboutin however, saying that, "because in the fashion industry colour serves ornamental and aesthetic functions vital to robust competition, the court finds that Louboutin is unlikely to be able to prove that its red outsole brand is entitled to trademark protection."
Compared to music, movies, and publishing, copyright in the fashion industry is almost non-existent* because it applies to a class of items that serve a basic, utilitarian function. Every person needs clothes for very practical reasons, and yet we all own far more than we'll ever wear. Many times we'll send a shirt to Goodwill for the simple reason that we don't think it looks good anymore. Why is this? Sprigman and Raustiaula say it's because of copying.
Copying Is Great For Business
The Piracy Paradox says that copying starts a process called induced obsolescence, that is, making things unfashionable so people feel the need to go out and buy more.
The designs sent down the runways by high fashion brands each season are drafted by the best in the world, and are deliberately priced to be affordable only for an elite group. With no copyright to protect them however, these designs can be legally borrowed or replicated by mainstream retailers like H&M, who take these looks and produce a more affordable version for the average consumer.
What happens next is "anathema to the fashion conscious," according to Sprigman and Raustiaula. Once these trends hit the mainstream, fashion-savvy early adopters promptly drop the current look to move on to something new and more exclusive, kicking off a new cycle of innovation in the process.
Technically, there's nothing wrong with the old style, but it's abandoned, Sprigson and Raustiaula say, because most clothes are purchased for what they call their "positional value." This is their ability to send a message about the wearer's status. So apart from loving clothes for their aesthetic value, it could be argued that what fashionistas really want at the end of the day is to establish their position at the front of the pack.
"The fashion cycle is driven faster ... by widespread design copying, because copying erodes the positional qualities of fashion goods. Designers in turn respond to this obsolescence with new designs. In short, piracy paradoxically benefits designers by inducing more rapid turnover and additional sales (Sprigson and Raustiaula, 2006)."
Copying And What You Do
Induced obsolescence and the free-for-all in fashion may have some implications for other creative fields, in which copying is considerably less tolerated. We're more likely to say ideas were "stolen" rather than copied, and that's because we do feel robbed, thinking that somebody else is enjoying the fruits of our labour, minus the mental expenditure it took us to get there. Perhaps it's time to consider though whether our work has in fact been stolen, or whether it has a role to play in a larger trend cycle, as in fashion.
Copying As Status
If, like a fashion brand, you have built a name for yourself with an extremely distinctive look or feel—think Yayoi Kusama, The Weeknd or Aerosyn-Lex—and you see your Doppelgänger doing their best imitation of you, before reaching for your lawyer's phone number, consider the article cited by Sprigman and Raustiala called Shopping For Gucci on Canal Street, by Jonathan Barnett.
"The introduction of copies, provided they are visibly imperfect, may increase the snob premium that elite consumers are willing to pay for a luxury fashion good. Second, the introduction of copies may lead non-elite consumers to adjust upward their estimate of the status benefits to be gained by acquiring the relevant good, thereby possibly translating into purchases of the original." (Barnett, 2005, cited by Sprigman and Raustiaula, 2006).
If your style is clearly recognizable in the work of somebody else, it can give your work a kind of prestige rather than taking away from it. Imitation—although irritating—is the sincerest form of flattery, and if anything, validates how good your creative choices are. And although it may feel that way, rather than steal your thunder, being copied just tends to make the admiring plagiarist seem a little lost in comparison.
People selling exact reproductions of your work should be stopped in their tracks, but drafting a cease-and-desist letter to a college kid who idolizes you just looks miserly.
Whose Idea Is It Anyway?
There's a chance that elements of your work feel fresh and new because, like the fashionista, you're an early adopter. So you see similar themes starting to appear in the work of other people. Problem is, it's not quite distinctive enough or you're not well enough established to have people trace it back to you. Ego check: perhaps it's time to consider whether this really is just yours, or whether you're in tune with a brand new fashion trend.
It's a common occurrence in fields like advertising or street art to see similar themes crop up around the same time, in the work of people who've never even heard of each other. A prime example is Banksy, who was an early adopter of the stencil art form, and among other things is known for his quirky stencilled rats. He claims he had no idea when he started doing them of the existence of Blek Le Rat, the French stencil artist whose motif is also the city rodent, but who pre-dates Banksy by a decade.
Rather than get worked up about it, seeing people copy your work is your sign to make like a fashionista and move on to the next fresh thing. Those who consistently abandon that which has become in style gain a reputation as leaders and tastemakers, and that, for a creative artist, is always good for business.
*It's probably useful to note that brand logos such as the Chanel linked C's or the Versace Medusa head are completely protected under trademark copyright laws, and it's one reason why so many luxury items have made their logos an integral feature of many of their designs. Consider the world-famous LV-studded luggage: knockoffs on places like Canal Street featuring the LV logo do infringe on a brand's copyright and are illegal. But the inability to patent anything further—like a cut or colour—is why there is so much copying in fashion, with some brands producing exact replicas of another brand's design with no consequences at all.