Fashion Designers Hope That Michelle Obama Gets Them Copyright On Clothing Design

from the comes-from-all-directions... dept

While there are plenty of legitimate worries that the Obama administration is way too influenced by copyright maximalists, who knew that the battle for ridiculous new copyright laws would start involving the First Lady as well? For years, the fashion industry has been a shining example of an industry where innovation and competition thrives, despite no ability to copyright designs and widespread copying of those designs. However, what's resulted is a more dynamic and more creative marketplace that has actually increased output and helped enlarge the market. In fact, repeated studies have shown that it's this lack of intellectual property protection that has made the industry so successful, and that implementing restrictions would actually harm the industry. That's because the rampant copying has done many good things:

• It helps permeate new designs into the market much faster.
• It creates a defacto market segmentation between "originals" and copies, which actually has increased the value of having an original brand name design.
• It encourages more innovation because designers know that they need to keep coming out with new works to stay on top, rather than relying on their old designs.

And it's working. The fashion market is highly competitive, very robust, and very, very creative. So it makes no sense at all that anyone should want to add new IP into that market. The purpose of copyright is to encourage new content creation, and anyone would be hard pressed to say that the fashion industry isn't quite good at constantly churning out tons of new designs. And yet... as with so many case studies about intellectual property, those who are on top often want increased IP protection, not to encourage the creation of new content, but to stamp out competitors and be able to slow down innovation and rest on their laurels.

In other words, the leaders in highly competitive markets often implicitly recognize that IP protection does exactly the opposite of its intended purpose: and they want that. It helps lock them into a leadership position by easing competition, and slowing down the pace at which they need to innovate. So, it should be no surprise that over the years, some top fashion designers have pushed hard for Congress to create a new copyright for fashion designs, despite the total lack of evidence of any need (and, in fact, lots of evidence to the contrary). NY Senator Chuck Schumer has been a big supporter of such a damaging idea, but it hasn't gone anywhere to date.

Yet, now we find out that many top designers, who have designed dresses for the First Lady, Michelle Obama, are hoping to enlist her help in supporting such legislation. They're apparently excited that Michelle Obama is known for her fashion sense, and are playing off of that to get more attention. Unfortunately, in the article linked here, the Washington Post's fashion columnist simply parrots the designers' false claims about how such copying "harms" the industry, despite the evidence saying exactly the opposite. I guess it's too much to ask the Post's fashion columnist to actually understand or research the issue, but it's unfortunate that these false ideas are being reported as fact, and that the First Lady may get dragged into a battle that would ultimately harm fashion design by establishing protectionism where none is needed.

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Giorgio Armani Realizes That Fashion Copying Isn't A Bad Thing

from the good-for-him dept

For many, many years, we've pointed to the fashion industry as a great example of a creative industry that thrives despite widespread "piracy" and greatly reduced intellectual property rights. Contrary to what copyright maximalists claim will happen in the absence of such copyrights, the fashion industry is highly competitive, highly innovative and highly creative. Also, contrary to the maximalists' claims, it hasn't "devalued" the creators at all. In fact, it's only helped to increase the value of original works by the best designers. The copycats have actually pumped up their value, rather than decreased it.

Research has shown that it's because of this lack of IP that the industry has been able to thrive. That's because it does a few things: the copycats help spread the word about the designs, getting them spread to a much wider audience than the high end fashion designers would alone. On top of that, it increases the value of authentic works by those top designers, since the reputation increases the overall value. Finally, the rapid copying pushes designers to keep innovating and keep bringing out new things, so that they're always seen on the cutting edge -- ahead of the copiers.

Despite all of this, some in the industry have been pushing for special new copyrights for fashion, and have even found some politicians willing to support the idea -- despite clear evidence that it's not needed (the highly competitive, highly innovative industry that exists) and research suggesting such a right would significantly harm the industry.

That's why it's interesting to see this Time magazine interview with Giorgio Armani (sent in by an anonymous reader), which relies on questions submitted by Time readers. Two of the questions deal with issues concerning "copying" of designs -- and Armani seems to recognize quite clearly the value of copying, and laughs off the idea of suing anyone for copying a design. The only downside he sees is when his designs are counterfeited with the Giorgio Armani label -- which is something we agree with. That's what trademark is supposed to protect: consumer confusion over someone pretending to be a brand that they are not. Otherwise, he seems quite happy to recognize the benefits of copying in the industry:

Does the Armani brand suffer a lot of damage because of counterfeit products? David Remenyik, BUDAPEST

Personally, I think counterfeit products are good because their existence shows that we create something people want to copy. Professionally, it causes big problems because it creates products with your name on them that are not controlled by you.

You recently accused Dolce & Gabbana of copying one of your designs. Do you plan to pursue this claim in court? Alice Goodman, SYDNEY

No. This happened at the end of a small press conference. One of my colleagues brought me a photo of this pair of pants. I said, very nonchalantly, "Look--great designers like Dolce & Gabbana copy us!" I was joking, it was not serious, but naturally the press picked up on it and splashed it all over the headlines.

Hopefully, other designers will start to recognize that this view makes sense. Having someone copy your work is a good thing, and let's hope this recognition begins spreading to other industries as well.

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Fashion Designers Turning To Patents To Protect Their Designs (And Kill The Industry)

from the how-short-sighted-can-you-be dept

Five years ago we pointed out that the entertainment industry could take a wonderful lesson from the fashion industry. After all, here was a highly competitive, extremely profitable, exceptionally innovative creative industry -- and it was doing all that without copyright protection. It seemed to show quite the opposite of what many in the entertainment industry predicted would happen without copyrights. Unfortunately, though, the lessons seemed to go in the other direction. The fashion industry got jealous of the entertainment industry's ability to crack down on innovation with copyrights and pushed Congress to introduce new legislation that would add a copyright for fashion design. Recently such laws have been getting a big push from politicians who are pandering to the fashion industry. Of course, studies have shown that the very reason the industry has thrived was because the lack of IP protection. In fact, one bit of research showed that adding IP protections to fashion could kill the industry.

While that may sound counterintuitive at first, it's not once you understand the market a little bit more. Fashion is a trend industry. You need a trend to make something popular and the only real way to get a trend is when designers are copying each other. Without that ability trends don't show up, and the demand for the latest "trend" dries up. On top of that, having copycat designs on the lower end actually act as a "signal" that a high-end designer is on to something. It helps prop up the price of those name-brand designs, while making similar copycat designs more affordable to a lower end of the market that would never buy the high end designers. It's both a way of establishing a larger market and doing price discrimination.

However, it appears that fashion designers still don't want to understand the economics of intellectual property and why it may hurt them. Since the bill for copyrights on fashion designs is still making its way through Congress, designers have taken it upon themselves to start using design patents instead and enforcing those rights aggressively (thanks to Gary for sending the story in). Considering that the recording industry's aggressive enforcement of copyrights has contributed to a massive slide in revenue for that industry, you would think that the fashion industry would think twice before following it down that path.

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If The Fashion Industry Doesn't Get Special Copyrights, The Terrorists Will Win

from the who-else-can-we-help? dept

Having seen the Senate create a special patent exemption for banks, it should come as no surprise that plenty of other industries are looking for special intellectual property treatment as well. Take, for example, the fashion industry. Years back, we noted that the fashion industry was a near perfect example of a creative industry that thrived despite no copyright protection on clothing designs. It showed what a myth it was that creation and innovation would stop in the absence of copyright law. In fact, studies began to show that it was that exact lack of copyright that drove the industry to be so innovative. That was for two reasons. First, designers had to constantly be innovating. An old design is an old design and they couldn't rest on their laurels, but had to keep creating newer and better designs. Second, by allowing knockoffs to hit the market, it actually helped promote the designer versions, and make those legitimate versions even more valuable.

Given all that, it's pretty difficult to understand why Congress decided to introduce new legislation specifically extending copyright to the fashion industry. Research suggested that such a copyright would effectively kill the fashion industry. It's about as backwards a law as you can get. The purpose of copyright is to create an incentive for new and innovative content -- and here's an industry where a ton of new and innovative content is created all the time without it. To any right thinking person, it should be clear that no copyright is needed. And, yet, Congress moves forward with the effort.

As the bill is being discussed, Congress has apparently held a hearing entitled: "Are Special Provisions Needed to Protect Unique Industries?" The answer should be a pretty clear "no," but instead, people were treated to an explanation of how a lack of copyright in the fashion industry would mean that the terrorists, organized criminals and child pornographers would win:

"Most people think that buying an imitation handbag or wallet is harmless, a victimless crime. But the counterfeiting rackets are run by crime syndicates that also deal in narcotics, weapons, child prostitution, human trafficking and terrorism. Ronald K. Noble, the secretary general of Interpol, told the House of Representatives Committee on International Relations that profits from the sale of counterfeit goods have gone to groups associated with Hezbollah, the Shiite terrorist group, paramilitary organizations in Northern Ireland and FARC, the Revolutionary Armed Forces of Colombia."

Note, of course, that where the proceeds of such sales go has no bearing, whatsoever, on the the issue of copyright. But don't think that won't stop the fashion industry from setting this up as an emotional issue. And, of course, it's not just the fashion industry. The report also notes that the automobile makers showed up at the hearing as well, claiming that they need special copyright protections on car part designs. Who else wants to step up and ask for special protections?

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EU Looks To Destroy Fashion Innovation; Begins Enforcing Fashion Copyrights

from the a-big-step-backwards dept

We've spent plenty of time discussing how innovation thrives in the fashion industry, despite a lack of intellectual property covering designs -- as well as rampant copying. In fact, recent studies have shown that the reason the industry is thriving is because of the lack of intellectual property protection -- leading to a much more dynamic and competitive environment, leading to a more rapid pace of innovation. However, despite all that innovation going on in the industry, some in the US have been looking to add new intellectual property laws that cover fashion designs. This makes no sense. The purpose of intellectual property laws is to encourage innovation and creation. If the industry is already thriving, there is no sensible rationale for then adding in those laws -- unless it's an attempt to slow down innovation and allow the current leaders some monopoly on the legacy business they've already developed. In other words, it's corporate welfare for the leaders in the space, designed to squeeze out any innovations.

We may start to see just how pointless a move this was, as over in Europe they decided to grant some IP protections to fashion designs a few years ago. Those new regulations had not been enforced... until now. eoinmonty writes in to let us know that a UK designer has won a lawsuit against a retailer for selling clothing that was similar in design to that of a well known designer, Karen Miller. Now, some will argue that this kind of ruling doesn't hurt innovation because the one getting sued was merely copying. But that's assuming that the story only goes one-deep. As the research on the fashion industry has shown, when knockoff clothing is made, it simply encourages the brand name designers to continue to design something newer and better, pushing the industry forward. If Karen Miller doesn't have to worry about competition, then she can rest on her laurels and has less incentive to continue to design yet another new line of clothes, slowing down the pace of innovation in the fashion industry.

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Copyright Is About Incentives, Not Protection

from the net-benefits dept

Whenever we discuss the issue of copyrights and bring up the fact that copyright is not a welfare system to protect creators, people get upset with us. There seems to be this false assumption that copyrights (and patents) are designed for the sake of protecting the creator of content. That's not true and it's never been true. From the very earliest debates about the concept of intellectual property in the US, it has always been about creating incentives for innovation -- or, as the Constitution so eloquently puts it: "to promote the progress of science and useful arts." In thinking over the various debates over copyright, it seems to come down to this particular issue over and over again. Those who are focused on the original purpose of copyrights recognize the problems with the copyright system and are interested in fixing them. Those who believe that the purpose of copyrights is to "protect" don't have a problem with the way things are, or with the idea of strengthening copyrights, even if they weaken the actual market and are a net negative on society.

This is quite clearly indicated in a great article by Julian Sanchez arguing against extending copyright protections to the fashion industry (found via Tim Lee). The question of extending copyrights to the fashion industry has been discussed at length before, but a few key points in Sanchez's piece highlight this split in thinking about the issue. He notes, as many others have, that the industry is constantly innovating and is quite healthy -- which is why the idea that new "incentives" are needed seems laughable. However, if you view things from the position that copyright is about protecting, then it's a different story. Sanchez notes that while individual designers may be harmed, it's only helped the overall industry. From that standpoint, if you believe in protectionism, then you say these new laws are needed to "protect" those who are harmed -- ignoring the greater harm caused to the rest of the industry.

The history of economics is littered with examples of why protectionism is rarely, if ever, a reasonable policy. It tends to backfire badly, in part because it takes away many of the incentives for competition and innovation. In protecting one area, you are inevitably harming another. Indeed, studies have shown that innovation in the fashion industry is often because of the rampant copying, rather than in spite of it. That's the way you want markets to work -- where competition drives innovation by forcing companies to keep innovating to leapfrog each other. Sanchez quotes legal scholar Kal Raustiala to make the point: "When a successful restaurant opens up on a street that's never had a restaurant before, there's a way in which the second business is parasitic on the first. But in the United States, we call that capitalism and competition."

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Why Copyrights Would Kill The Fashion Industry

from the how-it-all-works dept

Earlier this month, we wrote about Senator Chuck Schumer's misguided plan to extend copyright protection to the fashion industry. As we've noted in the past, this makes absolutely no sense. The purpose of copyright is to create incentives for new creative content -- but the fashion industry already has those incentives. It's already quite competitive with designers constantly coming up with new designs. In other words, there's no reason to add artificial incentives for creativity. In fact, recent research suggested that the entire reason that the fashion industry is as successful as it has been is because of the lack of copyright for fashion designs. David Levine now points us to another analysis, suggesting how adding copyrights to fashion designs could kill the fashion industry, by killing the biggest thing that helps the industry thrive: trends.

"People don't buy new clothes because they need them--they buy them to keep up with the latest style. The fashion industry responds to our desires by churning out new designs at a rapid clip. But fashion designers don't maroon themselves on a desert island to create their work. Designers pay close attention to the work of their peers, and they love to mine the past for ideas. When they see something that they like, they copy it--or, in the argot of the industry, they "reference" it.... The result is the fashion industry's most sacred concept: the trend. Copying makes trends, and trends are what sell fashion.... And the trend-driven copying of attractive designs ensures that those designs diffuse rapidly in the marketplace. This, in turn, makes the early adopters want a new style, because nothing is less attractive than seeing your carefully chosen clothes on the backs of the hoi polloi. In short, copying is the engine that drives the fashion cycle."

The article goes on to discuss exactly how Schumer's bill would kill this process. The article also, strangely, insists that the reasons why copyright would hurt the fashion industry don't apply to other industries, despite little proof of that fact. The fashion industry shows how little artificial monopolies are needed when you have plenty of other market incentives for compensating creators. That can apply just as well to many different industries.

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Senate Looks To Slow Innovation In Fashion Industry With New Copyright Laws

from the the-industry-is-thriving dept

For years, the fashion industry has represented a great example to show to people who assume that copyright is necessary to build a thriving creative industry. Copyrights do not protect fashion designs, and while there definitely are copies and knockoffs, that's actually helped the industry thrive. There are a number of reasons for this. First, the derivative versions of the designs make them much more widely known and available, and actually increase the value of the original brand name versions -- since only designs that are really good are seen as being worth copying. More importantly, however, the lack of copyright on fashion designs means that fashion designers need to be more innovative more often. They keep coming up with new designs, because they can't stagnate. Considering that the entire purpose of copyright is supposed to spur more creative works, the fashion industry shows that the lack of monopoly protection is actually a bigger incentive. So, with the highly competitive fashion industry thriving due to the lack of copyright protection, there should be no reason to suddenly add copyrights. Apparently, no one has explained that to the U.S. Senate, which is considering a bill to extend copyrights to fashion designs. Certainly, some fashion designers want this -- because it will let them rest on their laurels. They won't have to be as innovative. There will be less competition. However, there's simply no reason for Congress to step in with special incentives for innovation in a market that is already thriving thanks in large part to the very lack of those "incentives."

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