Unlike the film and music industries, fashion has thrived by shunning strong property rights for its creative output. No one can “own” the herringbone jacket or the “little black dress.” Upstart entrepreneurs can make exact copies of gowns worn on the red carpet, and no one cries “piracy” and sues.
But now there are signs that the open fashion commons is coming under siege. The Financial Times of London reports that brand-name fashion houses are increasingly suing the discount imitators of high-end clothes for copyright infringement. It’s too early to declare this a trend (at least in the United States), but if the propertization of apparel design gains any momentum, I predict that the fashion biz could lose its mojo big time. Does fashion really want to become just another moribund, protectionist creative sector like Hollywood, television and commercial radio?
Intensifying competition seems to be propelling the campaign for broader copyright protection. Thanks to digital technologies and media exposure, the fashion cycle is accelerating and competition is growing. The FT article by Elizabeth Rigby (August 18, 2005) notes that luxury dresses now move from the catwalk to the discounters in a matter of weeks. Copycat designs are more readily produced by a wide array of competitors, including online retailers like eBay. As one attorney put it, “In the past it would take six months for designs to find a way to the high street but now the copying is instant. So people are bringing things out at the same time or even before [the original items hit the luxury stores], and the designers are losing any type of lead time and competitive advantage they had.”
Why so bad about all of this? It strikes me as a cause for celebration. Fashion is such a robust arena of creativity precisely because it welcomes sharing and derivation, and embraces genuine competition. Like open source software and musical communities like jazz and folk, fashion understands that an open access regime is best way to elicit high-quality innovation and super-charge market growth. What’s so bad about real competition?
The luxury fashion houses in Europe and the U.K. seem to think that enhancing their own property rights won’t have a larger fallout. Yet more than they dare admit, they rely on the design commons for next season’s product line. Think how many trends that high fashion has “stolen” from off the street, from hip-hop, and from countless other subcultures. That’s quite a bargain.
The only thing that companies can protect is their name and logo, which is fair enough. Hence the different legal treatment for look-alikes (legal) and counterfeits (illegal, because they fraudulently use a trademarked name). This system works well, but now EU attorneys want to kill the golden goose of creativity and growth by expanding copyright protection for apparel. As the FT writes:
Lawyers think there will be more cases to come as design houses take advantage of the European Union-wide unregistered design right, introduced in 2003 to run in parallel with UK design right and copyright, which makes it far easier for fashion labels to defend and protect their designs.
“The old UK design rights did not cover surface decorations,” says Nicola Solomon, a lawyer at Finers Stephens Innocent, who has acted for both luxury and high street retailers on this issue. “They only covered look and shape. For fashion, that doesn’t really work. So the EU design right covers all aspects — cover formats, decor, colour — and lasts for three years from the date the item is put on the market.”
It’s hard to imagine a more effective way for the fashion world to sabotage its economic and creative vitality. Stricter property rights in fashion will create new mini-monopolies, raise prices to consumers and limit the supply of hot new clothes. This will result in reduced sales and less consumer engagement with fashion. It will also slow the metabolism of creativity and competition. Over-propertized fashion design risks becoming as regimented, predictable and forgettable as pop radio.
We would do well to listen to the sage advice of the great fashion doyenne Coco Chanel, who once said, “Fashion should slip out of your hands. The very idea of protecting the seasonal arts is childish. One should not bother to protect that which dies the minute it is born.”