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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Comments on “Fashion Designers Turning To Patents To Protect Their Designs (And Kill The Industry)”

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Zubin says:

Re: competition

It’s not competition that’s doing it, it’s desire to remove competition (desire to monopolize), combined with protectionism.

Positive cooperation, however, is a way to defeat unneeded protectionism, as we’ve begun to see in the F/OSS community and more recently in the music industry.

Anonymous Coward says:

Re: Re: competition

Ya know what? I blame Bush for this.

Seriously think about it. Bush has done a lot of damage to the United States. All in the name of “protecting” it.

Others are just taking the same mentality (eg “protecting” things *wink wink*) and applying it elsewhere.

You’d see it more places if there was more opportunity to do such things.

smc says:

too either/or -- protect without being too stringe

Love your stuff, but think your analysis of this issue is too either/or. Creative derivation and trend creation are *very* different from knockoffs and counterfeits — which not only destroy profits but affect socioeconomics (e.g., human rights issues behind counterfeit goods). Unlike the music industry, which doesn’t easily offer low-price or mix-n-match options for consumers, the fashion industry offers many diffusion lines, specialty collections, and other options for mass consumers. So affordability/access isn’t the issue; just look at Target, which gets this right. Bottom line: no one deserves to see their creative designs blatantly copied. There are ways to protect creativity and encourage trend creation without stifling creative derivation. “Protection” doesn’t have to mean stringent control…

Anonymous Coward says:

Re: too either/or -- protect without being too str

You’re right protection doesn’t have to mean stringent control. But I bet my life that if this legislation passes it will mean just that.

Also, this will give knock off products made in China more demand, as suing them over infringement will be much harder (impossible) and they know it. While harmless Sally Q, here in the “good ‘ol us of a” will get her stockings sued off.

diazamet says:

Re: too either/or -- protect without being too stringe

The thing that get me is, designers are trying to get this legislation to protect *their* designs but the are very few designs (in any field) that don’t “borrow” from previous designs.

It seems to me that current designers don’t mind ripping off previous designs but don’t want to return the favour to future designers.

smc says:

Re: Re: too either/or -- protect without being too stringe

Agree with all of the comments/responses above — but to reiterate, “infringement” should only apply to true ripoffs and counterfeits — *not* to borrowing ideas. Because yes, as Mike originally stated in covering this topic, the design world IS about successfully borrowing ideas and advancing innovation in design. But borrowing does NOT= ripping off. However, as Steve notes making these judgment calls is certainly a slippery slope. Even more reason to evaluate this issue in terms of degrees v. either/or extremes… ~sonal

Cygnus says:

The only way to protect clothing through patent law is a design patent. Design patents are ridiculously narrow. The best that can be said about them is that they protect against true knock-offs. Which is as it should be.

I wonder what sort of copyright protection a clothing designer would seek. Or, rather, what modification to copyright law would be sought. As it stands, clothing, being a “useful article” (technical term), is copyrightable only if the design incorporates pictorial or graphic features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the clothing.

Thom says:

Good Riddance

Good riddance to the fashion industry. It’s one of those ridiculous industries revolving around ditzy ideas that never should have been concieved much less brought to fruition – much like all of modern art. The only things I’ll miss when the industry dies are models like Heidi Klum and shows like Project Runway. Grrrrrowwwllll.

Rekrul says:

Good riddance to the fashion industry. It’s one of those ridiculous industries revolving around ditzy ideas that never should have been concieved much less brought to fruition – much like all of modern art.

Wait, you’re saying that people don’t actually buy and wear those fashion lines that look like they came out of a futuristic Japanese fighting game? 🙂

Jesse says:

I think it would be really cool if the fashion industry did suffer massive losses after engaging in copyright protections. It will provide for a really interesting case study for the rest of us; no more will proponents of strong IP be able to argue that it is pirates and not poor business models that are ruining their businesses.

Trish says:

Learn to sew, play guitar, write software... don't need em

In the future I guess we can expect the lower-end clothes stores to carry monochromatic polos and blue jeans only, cause all the ‘good’ designs are protected by big name designers. Those who want to be fashionable will either need to spend a week’s salary on just a few items, or learn to sew. And Lord knows it would be awful if the design I wanted was available at an affordable price, I might actually be making the economy roll by buying that instead of reverting back to the nineteenth century.

In fashion says:

Long Run

In the long Run this will hurt more than help . In 20 years when 90’s trends come back as retro Chic noone will be able to advance the style because the designs will all be “protected” we will see a huge halt in progress and only a
huge indie-fashion/social revolution will save the fashion industry. Grunge will come back and it will be lamer than ever.

Fashion has always been cyclical and IP protectionism puts a Berlin style wall up in between end and re-beginning. *

* All of the above is only in relation to countries that adopt the laws being discussed. The places that don’t will become the trend leaders as they will not be hindered by the Laws of other places.

Gerald L Thomas says:

U.S.Patented Buckle Devices..

I’m the inventor of this “buckle” device, that would revolutionizes the way we “wear” them…our communication and entertainment devices. Adding, to a more “fashionable” way to wear electronics. I would like to see these devices
in production, and I do own the patent; think of the many “knock-off” that will incurr, after the production of “high” end devices? I’m am the designer, of this fashionable, patented, wireless buckle, accessory..the future of fashion and communication, technology is merging.

I would like to sell patent…or to give licensing to other

Information: Gerald Thomas

EL says:

Protecting Clothing Designs


I just read the article on IP for clothing designs. I agree that there should be protection of a new/unique design for a given period of time. If everyone copies your design, how is it that the person who created the design profits from it. It would be a great loss to the creator. However, to spread the wealth and buz, the creater can license the design to others. That way the creator does not lose out on the profit and others can benefit as well.

Thanks for allowing me to share my comments.

ffd says:

Pro Patents to protect fashion

Yes, but it depends on the DEGREE OF INSPIRATION of the designer (gay or female).

Yes, fashion is cyclical. It gets bigger with new ‘style derivatives. Like the gay fashionista’s a-hole.

People need to STOP COPYING OFF other designers. Derivatives of derivatives is silly, because of the ME-TOO bandwagon jumpers want to take shortcuts in creativity.

I am for this change. Kill all the copycats.

ouch says:

I went to art school and I can say people were always copying me. It frustrated me because they got credit for work I had created first. Meanwhile, I was struggling through bad critiques while half the “good” class was getting good attention for ideas they STOLE from me. Yes, designers inspire eachother. But copying is a different thing. Copying means using the exact same fabric, same cut, same thread, same line, same closure and same “inspiration” to discuss the design. There is a difference and you wont feel it until you’re in the fashion industry. Good luck to all the ignorant fools.

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