Marketplace's Misleading Report On Fashion Copyright

from the not-the-reporting-we'd-expect dept

We’ve been covering the extremely misguided idea for fashion copyright for a while now. If you’re just catching up, the fashion industry can’t copyright its designs in the US, and the industry has thrived because of that lack of copyright. It helps do a few different things: specifically encouraging more and more innovation and new designs, while also segmenting the market and spreading trends faster. And yet, a few designers (including those caught copying others) have been pushing for a special government monopoly to limit competition and slow down innovation. There’s simply no justification for it — and many in the press have been pointing that out. Yet, the word on the street is that after years of failed attempts, this fashion copyright bill has a pretty good chance of passing, despite the fact no one involved can point to a single reason why it’s needed. What’s really stunning is that whenever the press seems to talk to supporters of this bill, I’ve yet to see or hear any of them, ask them about all this research on how copyright would harm the industry, or ask them even to explain why such a copyright is needed in such a thriving industry.

American Public Radio’s Marketplace show recently ran an interview with professor Susan Scafidi, who’s been one of the major backers of fashion copyright. While I’m not a regular listener to Marketplace, Jay Rosen recently wrote a piece explaining why he thinks it’s one of the worst programs on the radio. I don’t know enough to agree or disagree, but I’ll say that this interview doesn’t do it any favors, and is hugely problematic in how incredibly misleading it is. The interviewer, Kai Ryssdal, regularly confuses a few topics and doesn’t challenge some whopper assertions from Scafidi. It’s pretty sad.

It starts out with Ryssdal talking about counterfeit goods, and then asking Scafidi:

Can you copyright a design? I mean, you can’t copyright a book title, can you?

Already, we’re starting out on the wrong foot. Counterfeit designs and design copyrights are really two different topics. Counterfeit goods that pretend to be designer products violate trademark laws, in that they’re falsely pretending to be a work by someone else. The fashion copyright question has nothing to do with the counterfeit market. It’s about other designers and some “fast fashion” houses that create similar (but cheaper) designs targeting the lower end of the market. Counterfeiting is really a trademark issue — and is already against the law, but has nothing to do with copyright. Conflating the two is really bad, and confuses the issue totally, falsely giving the impression that fashion copyright is about protecting designers from counterfeit goods sold in alleyways.

Scafadi’s response mentions trademark, but does so in a way that implies that using trademark in such cases is a “creative” use of the law: She does nothing to point out the vast difference between counterfeit goods and fast fashion copiers:

Kai, no, you cannot copyright a fashion design in the United States at this point. However, I have been very involved working on legislation that would permit copyrighting of fashion designs, or rather a very, very short-term form of copyrighting — a three-year copyright. A good fashion lawyer needs to know the basics of the intellectual property system, but also get creative and borrow from areas of intellectual property law that might apply. We’re talking about the trademarks that protect labels and logos, for example. So it’s about getting creative with the lot out there and learning to apply it to the special needs of the fashion industry.

An interviewer who actually understood the issues would challenge the vagueness of the statement, and the easy conflation of counterfeits and fast fashion copiers — which the copyright law is targeted at. Instead, Ryssdal goes right back to implying that counterfeits were the problem, leading Scafadi to then make totally unsubstantiated claims about “harm” from counterfeiting:

Trying to shut down counterfeits and knock-offs is a little bit like trying to empty the ocean with a teaspoon. I think that the consumer doesn’t always understand the potential harm from carrying that fake Louis Vuitton purse. And the harm is particularly intense when it comes not to the big companies, but to the little ones, the ones whose names you might not even know but whose designs are stolen, sometimes even before they can get those designs to market.

Again, someone familiar with the topic would dig in and question this, especially since study after study after study has suggested this isn’t true at all. Who needs facts? The studies all seem to show the same thing. The “harm” to brand name producers is not found. Most people buying counterfeits know they’re counterfeits — so it’s not as if they’re being deceived (what trademark law is supposed to prevent). Furthermore, the studies have found that counterfeit purchases are aspirational, rather than substitutes. That is, the people who buy the counterfeits really want to buy the real version, but know they can’t afford them… yet. However, a very large percentage eventually do buy the legitimate version. If anything, the counterfeits act as market segmentation and promotion for the brand name designers. Scafadi ignores all of this research, and Ryssdal simply takes her assertion as true.

Ryssdal then finishes off the interview, by asking Scafadi to explain the “movement” she’s trying to create, where she makes some ridiculous, and frankly insulting, claims about the fashion industry, and how it needs to be “protected” because it’s a part of our “culture” now whereas it wasn’t in the past:

The idea of design being part of our culture is also part of what’s making it more possible to respect and protect design. Once upon a time, fashion was that frivolous thing that girls did, that women did, maybe some gay men did, but surely not the upstanding members of the bench and bar who were attired in their pinstripes or their black robes. Now, as fashion becomes more and more part of American culture, it becomes something that we respect, and therefore something that we protect, as a key element of our economy and as a creative medium that we find enchanting and engaging. So fashion law is catching up with how the culture is starting to perceive fashion.

My grandfather worked in the garment industry in NYC for many years, and I don’t think it was ever considered a “frivolous thing that girls did, that women did” etc. It’s been a pretty serious business for quite some time in New York. And you don’t protect something with copyright because it’s “something we respect.” Copyright is designed to serve one purpose and one purpose only: to create the incentives to spur innovation (“to promote the progress”). This is basic stuff that both Scafadi and Ryssdal should know and should admit. Considering that the fashion industry is highly competitive and highly innovative, there isn’t any actual evidence that such a copyright is needed. And Ryssdal never asks any such question about it, and instead helps Scafadi make the case by pretending the whole copyright issue has something to do with counterfeits. It’s a disappointing and misleading piece of journalism, which Scafadi abused to push her “movement” by misleading listeners.

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Comments on “Marketplace's Misleading Report On Fashion Copyright”

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ChurchHatesTucker (profile) says:

“Can you copyright a design? I mean, you can’t copyright a book title, can you?”

No, you can’t. You might be able to trademark a phrase and then use it as a title, which is where the ‘confusion’ or ‘counterfeit’ complaint would surface. It’d be a hard row to hoe, given the multiple examples of different authors using the same titles.

Not sure what this example was intended to show. I’ll have to listen to the whole thing (I caught part of it on the air.)

out_of_the_blue says:

First, you confound "garments" and "fashion".

Fashion is mostly a status symbol for The Rich who can afford to pay obscene prices for foppish feminine garments and then throw them away. A distant second is those who decorate themselves to fake having riches, driven by puerile notions and the sick culture of Madison Avenue.

In short, you write entirely too much on this topic.

Marcus Carab (profile) says:

Re: First, you confound "garments" and "fashion".

This topic is highly relevant to the focus of Techdirt which, you may have noticed, is economics and intellectual property issues (among other things). The outcome of the fashion copyright debate could have huge implications for countless industries. Nobody is here because they want to know if Mike (or you) approves of high fashion as a lifestyle choice.

Anonymous Coward says:

Re: Re:

Pretty tame if you aske me.

So, an Act is “tame” as long at it’s short? No matter its length, it’s anything but tame. It’s a radical change to the scope of copyright law. I have no idea how anyone could consider this tame.

Also, do you honestly think that the fashion industry is in need of any more incentives to create?

Anonymous Coward says:

Re: Re: Re:

Radical change? Not so sure this is the case simply because a new class of protected works is provided should such legislation gain traction and be enacted.

Moreover, the “protection” afforded for this new class of works would be quite limited in scope and duration…precisely the opposite of much that has been happening as of late with copyright law in general.

If such legislation is to be enacted, it is far better that it be added as a sui generis right than to the list of works of authorship and rights generally associated with copyright law (copy, distribute, etc.).

Anonymous Coward says:

Re: Re: Re: Re:

because a new class of protected works is provided should such legislation gain traction and be enacted.

This is precisely the reason. Where’s the disconnect here? The law would include a whole new category of product under copyright law. How is this not a radical change?

Moreover, the “protection” afforded for this new class of works would be quite limited in scope and duration

Riiiiight. Just like the original idea of copyright was supposed to be limited in scope and duration.

If such legislation is to be enacted, it is far better that it be added as a sui generis right than to the list of works of authorship and rights generally associated with copyright law (copy, distribute, etc.).

You’re skipping to how to enact the law and ignoring the question of why the law is needed in the first place. The purpose of copyright is to ecourage the creation of new works i.e. “promote the progress”. Copyright is a bargain between content creators and the public. The public grants content creators a temporary monopoly so that they can make enough money to be incentivized to create. In the fashion world, there is already a huge incentive to create, as evidenced by the fact that it’s wildly successful. What problem do you think this Act would solve? That some already-established fashion companies aren’t making enough money? This is not the purpose of copyright.

nasch (profile) says:

Re: design

how can i copy some major parts from another designer and make few changes and make my own design.
could you give me tip how to avoid the copyright.

I don’t know if this is a serious question, but fashion designs aren’t copyrightable in the US, so you cannot be sued for copyright violation for copying them. If you are in some other country, you’ll have to find out about your laws.

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