Running Head: INTELLECTUAL PROPERTY RIGHTS 1

Intellectual Property Rights and the Fashion Industry

Thooraya Mused

University of California, Berkeley

College Writing R1A

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Intellectual Property Rights and the Fashion Industry

In 2016, imitations of a $900 Snoop Dogg tee-shirt that was part of French designer

Demna Gvasalia Vetements Fall collection sold soon after at Urban Outfitters for $39 each

(Colon and Coscarelli, 2016). If an aspiring author were to copy the text of a book and resell it at

a lower price, he or she would be sued, because most recent books are protected by copyright

law. However, Demna Gvasalia, the designer of the original Snoop Dogg tee-shirt, did not

receive remuneration for the sale of the copycat design because fashion designs are not eligible

for copyright protection. Recent debate within the fashion industry has focused on whether

intellectual property law should protect the original creations of designers like Gvasalia. The

primary beneficiary of lax copyright laws appears to be the average consumer, who can purchase

a stylish but affordable Snoop Dogg tee-shirt that would be unaffordable at the original

designer’s price. Although it may seem that the consumer’s benefit comes at the expense of the

designer, upon further study, relaxed intellectual property law benefits both parties.

Whether in fashion or any creative industry, intellectual property (IP) law aims to protect

creators from plagiarism of their work. In the fashion industry, current IP law permits copying

the apparel of other designers as long as the copier does not use the source company’s trademark

name or logo and does not represent the copies as his or her own design. Strict copyright

protection rules for fashion designs do not presently exist because apparel has been deemed a

“useful article” (Sprigman, 2006, para. 2), or “too utilitarian” (Blakley, 2010). In other words,

clothing is considered practical, rather than artistic. As a result, styles created by designers

receive only partial IP protection. However, some fashion designers want to strengthen copyright

laws to provide more protection for their original designs.

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While it might seem that copying a design is harmful, copying or “sampling” can be an

integral part of the creative process and does not always constitute piracy. In her TED Talk,

“Lessons from Fashion's Free Culture,” researcher Johanna Blakley (2010) explains that the

process of copying and exchanging ideas has benefited creativity in the fashion industry as a

whole. Blakley notes that clothing companies should focus on learning from one another and that

disputes over piracy are overblown. In the world of fashion, she argues, imitation is not only the

sincerest form of flattery, but also a vital part of the brainstorming process that allows designers

to build on each other’s ideas and develop an abundance of styles. In support of her argument,

Blakley offers the example of Miuccia Prada, an Italian fashion designer who admired a vintage

jacket by the designer Balenciaga to the extent that she bought the jacket and replicated it

(Blakley, 2010). While some might consider Prada’s replication a form of plagiarism, Blakley

argues that the “culture of copying” creates the basis for inspiration and innovation in the

industry (Blakley, 2010). Prada’s copy of the jacket was not precisely the same as the original.

She recognized that the style of Balenciaga’s vintage jacket was ripe for a return to the

marketplace, with her own modern twist. By making her alterations and adding her own flair to

the skeleton of Balenciaga’s design, Prada created a popular new design that incorporated

elements of the original.

In addition to increasing creativity for designers, copying provides consumers with more

economical options for clothing. For instance, replicas of a $1,685 dress from Versace Spring

2007 collection were sold at Bebe for $130 and at Forever 21 for an even lower price (“Intro”,

2018). As Seema Anand, whose company Simonia Fashions produces inexpensive clothes based

on designer fashions, points out, she produces knockoffs because “The younger girls . . . want to

wear fashionable clothes, [but they] do not have so much money” (Wilson, 2007, p. 3).
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Decreased enforcement of IP rules allows non-wealthy consumers like these young girls to have

the opportunity to purchase stylish clothes. Fashion is a powerful tool of self-expression, and

these more affordable prices allow middle-class and lower-income individuals to purchase

popular products.

However, some commentators argue that copying does irreparable harm to the originators

of the design and the industry. They worry that fashion companies may be forced out of business

by a market flooded with low-priced knockoffs (Barnes, n.d.; “Intro”, 2018). For example, The

Limited, once a thriving fashion chain, shuttered its doors in part due to the problem of cheap

imitations (Wattles, 2017). In theory, the fast fashion industry robs fashion-house designers of

the profits made off their original designs. From this point of view, copyright protection is

essential to ensure compensation for designers who put time and energy into the design process,

material selection, and the resulting merchandise (Barnes, n.d.; “Intro”, 2018).

However, these critics are missing a crucial point: After a designer has created a new

look, the general population requires significant time to recognize this new look as a “trend”

(Wade, n.d.). Only after mass-market sellers promote the design with massive publicity

campaigns does the average consumer even become aware of the design and its growing appeal

(Wade, n.d.). By the time mass-markets are selling the trend, the consumers of haute couture

have lost interest, precisely because the popularity of a trend means the design has lost

exclusivity (Sprigman, 2006). In fact, Tom Ford, a lead designer at Gucci, researched the impact

of knockoffs on potential lost revenues and concluded: "the counterfeit customer was not our

customer" (Blakley, 2010). Ford realized that the people who purchase fast fashion clothes are

not the same people who shop at Gucci, and thus knockoffs are not a threat to Gucci’s
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profitability. The mass-marketing publicity may even add to the prestige of the original designer,

as consumers recognize that a high-end house is setting a particular trend.

Limited IP protection in the fashion industry has another unintended consequence that

can positively impact designers’ revenues. Rapid change in contemporary fashion encourages

individuals to shop for new garments whether they need more clothing or not. In fact, individuals

buy far more apparel than they did ten to fifteen years ago and are apt to purchase more

frequently, rather than choose to wear the same clothing until it wears out (Nielsen, 2015;

Sprigman, 2006, para. 4). In short, the desire to buy the latest fashions stimulates a vibrant

market for new clothing that benefits the industry’s sales. Successful fashion designers are

motivated to stay in step with demand by producing new designs. As companies embrace this

reality, they can benefit from a significant economic growth in their business.

Finally, current business trends point to the fiscal benefits of lax IP protection. In her

TED Talk, Blakley provides data proving that industries with minimal levels of copyright

protection—such as the food and fashion industries—have been more successful than industries

with increased levels of copyright protection, including the music, film, and publishing industries

(Blakley, 2010). These statistics confirm that low IP protection improves the viability of an

industry.

Although the debate continues about the benefits or the disadvantages of intellectual

property law in the fashion industry, both consumers and designers ultimately profit from a

broader spectrum of choices for consumers, and in turn, higher sales for fashion companies.

Evidence demonstrates that the “borrowing” of ideas encourages innovation in design, which

leads to more frequent purchases by consumers. Perhaps other creative industries, like

publishing, music and film, which rely heavily on copyright and spend billions mired in
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copyright lawsuits, should also consider the benefits of loosening copyright protection.

Consequently, IP law should not be extended further to protect the fashion industry, because

imitation spurs innovation and results in prosperity.

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References

Barnes. R. (n.d). Big-Box Fashion Piracy: The True Cost of Cheap Knockoffs [PDF document].

Lecture Notes Online. Retrieved from

https://bcourses.berkeley.edu/courses/1469778/files/search?preview=72426271&search_t

erm=apa

Blakley, J. (2010, April). Johanna Blakley: Lessons from fashion's free culture. TED Talks.

Retrieved from

https://www.ted.com/talks/johanna_blakley_lessons_from_fashion_s_free_culture

Colon, A., & Coscarelli, A. (2016, December 23). 12 Fashion Knockoffs. Retrieved from

http://www.refinery29.com/worst-knockoff-clothing-accessories

Intro to topic: fashion piracy. (2018). R1A S18 U1 L1. [Lecture Notes Online].

Retrieved from https://bcourses.berkeley.edu/courses/1469778/files/folder/Class

%20Notes%20generic/U

nit%201%20class%20notes?preview=72433178

Nielsen, M. [zentouro]. (2015, July 20). What is fast fashion [Video file]. Retrieved from

https://www.youtube.com/watch?v=OmP8ZxrXbf4&t=12s

Sprigman, C. (2006, August 2). The Fashion Industry’s Piracy Paradox [PDF document]. Lecture

Notes Online. Retrieved from

https://bcourses.berkeley.edu/courses/1469778/files/folder/Readings/U1%20Readings?

preview=72426242

Wade, M. (n.d.). The Sartorial Dilemma of Knockoffs: Protecting Moral Rights without

Disturbing the Fashion Dynamic [PDF document]. Retrieved from

http://www.minnesotalawreview.org/wp-content/uploads/2012/01/Wade_MLR.pdf
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Wattles, J. (2017, January 7). The Limited just shut all of its stores. Retrieved from

http://money.cnn.com/2017/01/07/news/companies/the-limited-store-closing/index.html

Wilson, E. (2007, September 03). Before Models Can Turn Around, Knockoffs Fly. The New

York Times. Retrieved from http://www.nytimes.com/2007/09/04/us/04fashion.html