Property Rights Need Clear Boundaries

by on October 8, 2006 · 92 comments

Dating a girl who reads Glamour has many advantages. One is that she always looks cute at parties. More importantly, though, she helps me keep abreast of the latest developments in the copyright debate. For example, she pointed out to me that the September issue has a pro-and-con feature on creating a new copyright for clothing design. The pro-copyright lady complains that “after a runway show, your designs are out immediately on the Internet and can be copied overnight. That means far more manufacturers can make a knockoff of your piece before your original has even gotten into the stores!”

The anti-copyright guy points out that once a fashion copyright was on the books, it would be almost impossible to determine which dresses are copying which other dresses. He points out that retro fashion has become quite common. Today’s hot styles are often imitations of styles from decades earlier. It would radically change the fashion industry if one company held the copyright to a particular style and was able to exclude others from imitating it.

The pro-copyright lady counters:

Designers are inspired by everything: by what people are wearing on the streets; by old movies; by vintage pieces. Take the wrapdress, which is what I’m known for. It’s the most traditional form of dressing, like a kimono or a toga. But what was different about my dresses, when I first created it, is that I made it from jersey fabric that molded to the body. I design and develop fabrics I use; I design the prints. Sometimes, that requires months of research. To me, when a designer creates something different from what existed before–and someone else profits from that designer’s creativity–there should be some kind of regulation. It simply should not be allowed.”

The problem with this, it seems to me, is in defining the scope of a given fashion copyright. A bootleg copy of a book, song, or video will be almost identical to the original: it’s very clear whether a given book or movie is a copy of another book or movie. But fashion is quite different. If I know somebody’s dress design is copyrighted, I might use a slightly different fabric, raise or lower the hemline slightly, add an extra ruffle, etc in an attempt to evade the copyright. A judge would then be put in the awkward position of comparing two dresses that look similar but not identical and deciding if they’re similar enough that one infringed on the other.

We don’t have to use our imaginations to guess what this would look like. We already have a textbook example of this in our software patent system. Research in Motion, an innovative company that built one of the most successful high-tech products of the decade, had to shell out $612.5 million to a company with no products at all but a better legal team. RIM thought that they could convince a judge that their device fell outside of the patents’ scope, or that the patents were invalid. Their gamble didn’t pay off. But they racked up millions of dollars in legal bills in the process. This unnecessary litigation was a direct consequence of the vagueness of software patents.

I think the fashion industry would become mired in the same kind of wasteful litigation if it succeeded in getting copyright protections for its products. And the only people who would benefit, in the long run, would be the lawyers.

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