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.

  • http://techdirt.com/ Mike Masnick

    This particular story keeps popping up every so often… and it’s always the exact same characters on both sides. You don’t name the two people, but I’m sure I can guess who they are from previous articles on the topic.

    However, as I wrote when just such an article popped up a month ago, if the market is already incredibly innovative and competitive, why should we put up new barriers? The market seems to work as is, encouraging designers to keep innovating and keep coming out with something new. So it’s hard to see what the societal benefit of increased protection is.

  • http://weblog.ipcentral.info/ Noel Le

    I agree with Mike.

    I would caution that the difficulty or complexity of applying legal standards is different from lack of “bright lines.” Note that many legal disputes in IP are decided by balancing/weighing elements or prongs (the fair use and abstraction tests in copyright are good examples). To replace these tests with “bright lines” sounds like a proposition for deciding IP disputes purely by prima facie observations, or worse, advocacy for replacing our common law system for the civil code.

  • http://techdirt.com/ Mike Masnick

    This particular story keeps popping up every so often… and it’s always the exact same characters on both sides. You don’t name the two people, but I’m sure I can guess who they are from previous articles on the topic.

    However, as I wrote when just such an article popped up a month ago, if the market is already incredibly innovative and competitive, why should we put up new barriers? The market seems to work as is, encouraging designers to keep innovating and keep coming out with something new. So it’s hard to see what the societal benefit of increased protection is.

  • http://weblog.ipcentral.info/ Noel Le

    I agree with Mike.

    I would caution that the difficulty or complexity of applying legal standards is different from lack of “bright lines.” Note that many legal disputes in IP are decided by balancing/weighing elements or prongs (the fair use and abstraction tests in copyright are good examples). To replace these tests with “bright lines” sounds like a proposition for deciding IP disputes purely by prima facie observations, or worse, advocacy for replacing our common law system for the civil code.

  • http://www.maclawstudents.com Erik

    There’s an interesting discussion of the issue over at AntitrustProf Blog.

    If you buy the notion that it’s a good idea to protect boat hull designs, then why not extend protection to fashion? On the other hand, if we protect boat hull designs and dresses, why not patent storylines and plots, or extend copyright to protect a hairdo. Maybe Tyra Banks can gain IP protection for her figure (not just her persona, but her figure). In order to protect himself against infringement, Walter Payton should be able to secure the rights on his running moves, so no NFL rookies will be able to steal from him.

    Getting back to reality, protection of industrial designs is not new. The Copyright Office prepared an interesting report about proposed protections for fashion design. They conclude with this:

    As stated above, the Office does not yet have sufficient information to make any judgment whether fashion design legislation is desirable. Proponents of legislation have come forward with some anecdotal evidence of harm that fashion designers have suffered as a result of copying of their designs, but we have not yet seen sufficient evidence to be persuaded that there is a need for legislation. We look forward to the Subcommittee’s hearing, at which proponents of the legislation will have an opportunity to make their case and at which the voices of other affected parties can be heard.

    It is worth noting that the fashion industry has tried to gain IP protection for a long time. They tried the courts, but that didn’t work. Cheney Brothers v. Doris Silk Corp. was decided in 1929. As Judge Learned Hand put it in the opinion:

    To exclude others from the enjoyment of a chattel is one thing; to prevent any imitation of it, to set up a monopoly in the plan of its structure, gives the author a power over his fellows vastly greater, a power which the Constitution allows only Congress to create…

    I find it a bit ironic that a 2003 opinion piece by David Bollier and Laurie Racine made the case that the massive economic success and vibrant creativity of the fashion industry is due to the fact that it is not impeded by IP protections. If the lords of fashion get what they want, in a few years they may find themselves hankering for the bad old days.

  • http://www.maclawstudents.com Erik

    There’s an interesting discussion of the issue over at AntitrustProf Blog.

    If you buy the notion that it’s a good idea to protect boat hull designs, then why not extend protection to fashion? On the other hand, if we protect boat hull designs and dresses, why not patent storylines and plots, or extend copyright to protect a hairdo. Maybe Tyra Banks can gain IP protection for her figure (not just her persona, but her figure). In order to protect himself against infringement, Walter Payton should be able to secure the rights on his running moves, so no NFL rookies will be able to steal from him.

    Getting back to reality, protection of industrial designs is not new. The Copyright Office prepared an interesting report about proposed protections for fashion design. They conclude with this:

    As stated above, the Office does not yet have sufficient information to make any judgment whether fashion design legislation is desirable. Proponents of legislation have come forward with some anecdotal evidence of harm that fashion designers have suffered as a result of copying of their designs, but we have not yet seen sufficient evidence to be persuaded that there is a need for legislation. We look forward to the Subcommittee’s hearing, at which proponents of the legislation will have an opportunity to make their case and at which the voices of other affected parties can be heard.

    It is worth noting that the fashion industry has tried to gain IP protection for a long time. They tried the courts, but that didn’t work. Cheney Brothers v. Doris Silk Corp. was decided in 1929. As Judge Learned Hand put it in the opinion:

    To exclude others from the enjoyment of a chattel is one thing; to prevent any imitation of it, to set up a monopoly in the plan of its structure, gives the author a power over his fellows vastly greater, a power which the Constitution allows only Congress to create…

    I find it a bit ironic that a 2003 opinion piece by David Bollier and Laurie Racine made the case that the massive economic success and vibrant creativity of the fashion industry is due to the fact that it is not impeded by IP protections. If the lords of fashion get what they want, in a few years they may find themselves hankering for the bad old days.

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    As a design professional (architect) I would like to strongly agree that this would in fact be very bad for designers, throughing up all manners of roadblocks for creative talent, and stifling innovation.

    Gothic Architecture, for example was the result of hundreds of years of trial and error, with each iteration being slightly different than the prior one, through a process of trail and error.

    Design movements evolve, each individual design building upon prior art. This kind of idea, were it widely applied, would lead to less creativity and less innovation.

  • http://weblog.ipcentral.info/ Noel Le

    Hmmm. Lets see here. How long do you wear any article of clothing. It varies a bit, but I probably turn-over my clothes more often than tennis rackets, golf clubs and editions of software programs, etc. Hence, the life-span of an article of clothing is relatively short.

    If you’re going to buy something only to wear it for a year or so, I suggest Tasso Elba’s fall line of casual suits. Maybe mix-match that with Hilfiger’s new dress shirts. Polo and Perry Ellis seem intent on waiting out this fashion cycle…

  • http://enigmafoundry.wordpress.com eee_eff

    As a design professional (architect) I would like to strongly agree that this would in fact be very bad for designers, throughing up all manners of roadblocks for creative talent, and stifling innovation.

    Gothic Architecture, for example was the result of hundreds of years of trial and error, with each iteration being slightly different than the prior one, through a process of trail and error.

    Design movements evolve, each individual design building upon prior art. This kind of idea, were it widely applied, would lead to less creativity and less innovation.

  • http://weblog.ipcentral.info/ Noel Le

    Hmmm. Lets see here. How long do you wear any article of clothing. It varies a bit, but I probably turn-over my clothes more often than tennis rackets, golf clubs and editions of software programs, etc. Hence, the life-span of an article of clothing is relatively short.

    If you’re going to buy something only to wear it for a year or so, I suggest Tasso Elba’s fall line of casual suits. Maybe mix-match that with Hilfiger’s new dress shirts. Polo and Perry Ellis seem intent on waiting out this fashion cycle…

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