There’s a lot of talk about whether or not copyright protection should be extended to fashion designs, and I’m concerned about the gap between the general, idealist vision about how designers, manufacturers and retailers should behave… versus what the reality would be if this bill were to become law. So I thought it would be helpful to pause and spend a post looking in to some of the relevant language and details. Because you don’t have to be a lawyer to know that in a court room, that’s what it’s all going to boil down to.

from Bertaut.com

The Nixon Peabody law firm does a great job of explaining the act in their post, Legislation to extend copyright protection to fashion designs reintroduced in Congress and except where noted, all block quotes below are from their site, but the underlining is mine. (If you want to read the nitty gritty text of the DPPA amendment itself, it can be found here.)

If passed, the act would amend 17 U.S.C. §§ 1301, et seq., which governs copyright protection of vessel hull designs, to afford copyright protection to fashion designs embodied in, among other things, clothing, handbags, wallets, belts, footwear, headgear, and eyeglass frames.

Vessel hull? What does that have to do with anything? Well, the reason that fashion designs (as in the cut of a garment as opposed to the print of the fabric) haven’t been afforded copyrighted protection already is because they are considered a ‘useful article.’ So someone had to dig deep to find a reference of another useful article that is protected. Like a vessel hull.

But enough about vessels, what does the DPPA define as a ‘fashion design?’

As currently drafted, a “fashion design” constitutes the appearance of an article of apparel as a whole, including any ornamentation,

Marc Jacobs Fall 09 on style.com's trend report "Party like it's 1983." Do you think these garments would be filed as 'original designs' by LVMH, the parent conglomerate?

Alright so we’re looking at the entire garment, not just a piece of it. so if someone came up with a particular sleeve detail no one had ever seen before - or copied something interesting from an obscure vintage piece and filed it with the copyright office as their own original design - and you had the same detail in your garment but the other parts and pieces were different… but wait…

…and specifically protects any original elements or the arrangement or placement of any elements incorporated in the overall appearance of the article of apparel.

So if you can’t prove that said clever sleeve detail was public domain, done before somewhere by someone else, and not an ‘original element’ (and not having access to the same exclusive vintage collections it might be a hard one to research) the designer - or company backing them - that filed the design would ‘own’ that sleeve detail. For three years. Just because they said it was theres first. And just like Levis, could hire dozens of detectives to scour the racks of the big stores to find things they deem ’substantially similar’ to file lawsuits against - but we’ll get to that part of the language in a bit.

But what if you, the designer, don’t claim any ‘original elements’ but do what designers do all the time - take shapes and proportions of collars, sleeves, waistbands, darts, pockets, etc - that are part of the shared design vocabulary and sit down in your studio and come up with a nice, wearable,  ‘classic with a twist’ garment? If it’s related to the current trend zeitgeist (and if you want it to sell then it probably is) chances are it looks somewhat similar to a lot of other garments currently in stores. But where is the line between somewhat similar and substantially similar? And how does the idea of a bunch of lawyers and random John Q. Public jurors off the streets making that determination sound to you?

The Marc Jacobs design above is reminiscent of Dynasty-style 80s wear, so can we expect to see black/silver lame jackets of this shape in stores everywhere? Probably. And I’d venture to guess that John Q. Public, especially if chosen for the jury because of his lack of fashion savvy, would probably notice the fabric as much as the shape in determining degrees of similarity.

The presence or absence of any particular color, or of any pictorial or graphic work imprinted on fabric, is not considered when determining the originality of the fashion design or similarity for the purposes of infringement.

Currently pictorial or graphic work is already protected, and the fabric used - including color - is not protected. So somehow we’re going to get John Q. Public to unconsider that element in his determination of degrees of similarity.

Under the act, it is an infringement to make, have made, import, sell, or distribute any article embodying a fashion design that was: (1) copied from a protected design, or an image of such design, without authorization; and (2) created with knowledge, or with reasonable grounds to know, that such design was protected.

This part is very important and is the basis for Kathleen Fasenella’s concerns she outlines in her Fashion Incubator post; the scenarios dismissed as hyperbolic by lawyers unfamiliar with the way garments get produced and distributed. As a trademark lawyer for the fashion industry once explained to me, she is able to get the big dollar judgements and/or settlements that pay her fees not by going after obscure no-name knock off labels, but the department stores who carry their lines. And what about that factory you contracted to sew your garments? Or even the sourcing company that found that contractor for you? (more…)

(Image from NY Times article cited in this post.) I could see some potential issue with the Karen Kane pocket or the Jones Apparel one, but those are off label mass brands that sell for less than Levis. The Jelessy, Von Dutch and Fossil examples are distinct, and those brands are positioned as more premium than Levis, not imitators trying to cash in on Levis brand equity

The past week has found me deep down the Google blog search rabbit hole weighing perspectives on the proposed Design Piracy Prohibition Act. Almost all who oppose the bill (myself included) voice a concern that the small, independent, struggling, up and coming designers this act purports to protect would in practice find themselves victim to a flurry of frivolous lawsuits in a climate of legal intimidation. Immediately my mind went to a January 2007 article in the NY Times, Levis Turns to Suing its Rivals, as a shining example of the type of activity sure to grow like a cancer on an already challenged industry if this bill were to become law.

So Levi’s is becoming a leader in a new arena: lawsuits. The company, once the undisputed king of denim and now a case study in missed opportunities, has emerged as the most litigious in the apparel industry when it comes to trademark infringement lawsuits, firing off nearly 100 against its competitors since 2001. That’s far more than General Motors, Walt Disney or Nike, according to an analysis by research firm Thomson West.

The legal scuffles offer a rare glimpse into the sharp-elbowed world of fashion, where the line between inspiration and imitation is razor thin. After all, clothing makers’ trade secrets are hung on store racks for all to see, and designs can be quickly copied with small changes to exploit a hot trend.

The lawsuits, which Levi’s says it is compelled to file to safeguard the defining features on its jeans, are not about the money — one settled for just $5,000 in damages. Instead, the company says, they are about removing copycats from stores. Nearly all the cases have settled out of court, with Levi’s smaller rivals agreeing to stop making the offending pants and to destroy unsold pairs.

Returing to 2009 for a moment, let’s take a look at professor and copyright attorney Kenneth J. Sanney’s post “Overlawyered or Just Over Simplistic on his blog, The Music Law and Copyright Blog, He accuses Kathleen Fasenella of Fashion Incubator of being ill informed and hyperbolic. While taking a patronizing tone against Fasenella - who has decades of experience in the nuts and bolts of garment production - for simplifying the law, he appears oblivious to the fact that while he might be an expert in the music industry, he clearly does not understand how he has oversimplified the inner workings of the fashion industry and the dynamic of trends and how they interface with culture.

He cites legal recourses available to designers if they are unfairly litigated against, but fails entirely to consider that even with said resources in place, designers would still be stuck in spending countless hours of time and energy dealing with this hassle in the first place. Sanney then goes on to ask the question:

Furthermore, in the current business environment how many large corporations are looking to task resources (both time and money) litigating against small businesses and individuals unless they have a serious claim that pasts muster under the most strict cost/benefit analysis?

LOTS OF THEM.  Think this is lame? Sign the petition here.

Let’s return to the Levis situation to try and determine if they are indeed protecting their trademark from imposters trying to cash in on their brand equity, or simply harassing the designers who are successful because they are offering desirable alternatives to the Levis trademark that had become diluted to the point of being unfashionable. It pretty much boils down the following quote by Steven Shaul:

“It was an original design,” he said. “Why would I use Levi’s stitching? If my jeans sell for $200, I would not knock off $40 jeans from Levi’s.”

Precisely. Shaul’s customer might very well be paying for the status of the logo on the back pocket, but they are paying for something to distinguish themselves from the masses in Levis. And Levis has the right to sue Shaul for this? Apparently so…

Back in the 1980s - when Levis were still cool and Americans were offered big bucks for the jeans off their butts when traveling overseas - there were counterfeiters producing jeans that people bought because they could pass them off as Levis. Just like ladies heading to Canal Street today looking for the guys that will take them into a back alley and sell the fake Louis Vuittons that they are trying to pass of as real. And in that circumstance a company should have the right to pursue legal action. That appears to be the sort of activity that the law was designed to protect against, not declining companies out of touch with the current zeitgeist intimidating upstart designers creating distinctive and highly marketed as such new brands that people are paying four times as much for because they are not like the big mass brands…with but as Mr. Sanney will be quick to point out, I’m not a lawyer, so what do I know.

From the blog, Seattle Trademark Lawyer: "Not identical or nearly identical, so no dilution: Levi’s “Arcuate” and Abercrombie’s “Ruehl” stitch designs "

As noted in the Times quote at the beginning of this post, the vast majority of these 100+ lawsuits were settled out of court by designers unwilling or unable to take on Levis, but what happened when Levis picked on someone their own size?

The image on the right is taken from attorney Michael Atkins blog, Seattle Trademark Lawyer, in a post titled Court Finds Abercrombie’s Stitch Design Does Not Dilute Levi’s Stitch Design

In summary, the court found that the subject marks (depicted above) were not “identical or nearly identical,” so Levi could not prevail on its dilution claim.

The court found: “The advisory jury found that [Abercrombie’s] Ruehl design and [Levi’s] Arcuate mark were not identical or nearly identical. In order to be nearly identical, the two marks must be similar enough that a significant segment of the target group of customers sees the two marks as essentially the same. ‘In the dilution context, the ‘similarity of the marks’ test is more stringent than in the infringement context.’

I couldn’t tell whether or not Atkins firm represented one of the parties in this case. I am, however, curious as to what would have happened to the smaller designers Levis pursued if they’d had the resources to defend themselves as Abercrombie did. I also hope that this case provides the precedent necessary for indies to find attorneys willing to come to their defense without large retainers up front.

(more…)

As I started digging around a little bit into what actual indie designers think about the Design Piracy Prohibition Act (DPPA), I found the situation far more frightening than I ever thought it could be. Whereas before I could just chalk it up to one more example of corporate lobbying I couldn’t control and be ever so grateful I wasn’t trying to make a living as a fashion designer, now I’m starting to grasp how this could have a major impact on consumers of fashion as well, and our access to innovation, good design and quality clothing. You can sign a petition here, (you really should, it’s super easy and the least we all can do) and there are links to contact senators in the quote from Kathleen Fasenella’s Fashion Incubator below.

Picking up where I left off in the previous post…

Marc Jacobs may have risen to fame and fortune based on his genius ability to co-opt, tweak and disribute an indie aesthetic to hipster celebutantes around the globe, but anyone who designs for Louis Vuitton can hardly be labeled and indie designer. What do the real indie designers  - the one this law is supposed to champion and protect - think about the DPPA?

From Blogger Erika Jurney’s site, Try Handmade, “Beware the Design Piracy Prohibition Act (HR 2196)”

If you care about being able to buy indie fashions, then you will be horrified to learn about the Design Piracy Prohibition Act (HR 2196). On the face, it seems reasonable. The purported goal is to prevent designers from ripping off styles from others, but their methods are insane.

Under this legislation, however, designers will need to consult with a lawyer throughout the design process to ensure that every new design created could not subjectively be found at a later date to be “closely and substantially similar” to one protected in the Copyright registry…

Further, young, up-and-coming designers would be susceptible to legal intimidation from designing anything new at all, as they would likely not have the resources to fight a legal challenge in court…

While the bill purports to keep all fashion designs that have existed in the past free and open for all to use, the legislation would allow the ability to copyright non-original design elements in the public domain if arranged in an original way.

Moreover, since there is no test for originality, the registry will begin to be populated with designs that from the public domain. Thus, a designer who draws upon inspiration from the public domain, can easily find himself/herself stuck in costly litigation. - Fashion Incubator via Boing Boing

Anyone out there know any fashion designers? Big, little, rich, poor, amateur or pro, have you ever known a fashion designer who has time to sleep, much less keep up with this kind of research and paperwork? Again, I repeat, the only designers who will benefit from this act will be the ones with enough corporate backing to retain copyright lawyers, the ones who will really benefit the most from this law.

This point is debated by two well known designers via a Reuters article is making its way around the web, which I was able to access on Canada.com:

Toledo also fears the law could hurt the independent designers it was written to protect, by making them risk expensive copyright lawsuits. “Half these young designers can hardly pay their sewers. So you’re going to take that money and go to court?” she asked.

The article highlights the arguments between the CFDA (Council of Fashion Designers of America) - an elite, invitation-only organization representing the only the hottest names in high-end fashion; the three-four figure garments featured in aspirational editorials of the fashion media - and the American Apparel and Footwear Association, which represents the major retailers from which the vast majority of Americans procure their clothes.

Cornejo said the law would encourage collaboration between the two sides of the clothing market. Under the DPPA, mass-market retailers would have to hire designers to consult, instead of copying, she said.

But Toledo disagrees.

“They said that manufacturers would be forced to hire us, the designers. Many of the interns I’ve had happen to work now for JC Penney, or the Gap - they are designers!” she said. “What are you saying, it’s a hierarchy? We’re better?”

Toledo worries the DPPA will give high fashion a monopoly on trends, making good design more expensive and reducing consumer choice. “You’re now saying that the top (designers) can own the top and the bottom levels of the market,” she said.

The corporate sponsors of the top designers, that is.

But if you really want to know how scary this is for independent designers, take a look at what else Kathleen Fasenella (who has tirelessly championed up and coming designers by being one of the only sources for rock solid soup to nuts how to instructions on turning one’s dreams into a solid line of manufactured clothing distributed in stores) has to say about what life would be like for aspiring designers under this new law. The quote is from Proposed Law to Destroy 90% of Design Businesses lengthy, but is worth reading and sharing:

It seems so surreal; between CPSIA, Proposition 65 and now the Design Piracy Prohibition Act, there seems to be nothing less than a full scale war against the apparel industry. Have you forgotten about the Design Piracy Prohibition Act? Well, it’s been resurrected and presented to Congress (HR 2196). It’s nothing short of a bold power grab to protect wealthy socialite designers at the expense of independent designers, putting over 90% of them out of business. Consider this scenario of what will happen if this bill is passed:

Your name is getting out there, picking up more doors everyday and your accounts love you. Now that your fabric samples have arrived, you’re inspired and happily sketching your new styles. This is sure to be your best collection ever! So then you reach for the phone to schedule a slot to have your patterns and samples made. But on the other end, the pattern maker or sewing contractor refuses to work with you. Your heart sinks through the floor, why? You’ve got an established relationship, you’re a great customer with regular work and steady pay but still, no one will take your contracts. In fact, they’re shutting down themselves.

Why no one will take your work:
Let’s say we help you produce this line, you sell it and make your pile crumbs. Then -thanks to the influence of the Council of Fashion Designers of America (CFDA, membership by invitation only) and Congress- somebody can come out of the woodwork and claim it is their design, they own it and now you owe them. If they registered the design and you didn’t know it, this could be perfectly legal. Of course you didn’t copy them but it won’t matter. The fact that society designers have been copying nameless unknown independent designers for years doesn’t even register. Even Diane Von Furstenberg, the leading champion of this bill recently got caught doing it. Because you don’t have any money, this party will sue everyone in your production and retail chain. That means pattern makers, contractors and the stores who bought your stuff. So in the interests of avoiding law suits, any service provider is going to require you prove you own it. It’s even worse for retail buyers who face potential criminal prosecution for dealing in pirated goods. Everybody who helps you or buys from you is going to require you to prove ownership of your concept before they’ll have anything to do with it. If wealthy society designers like Diane Von Furstenberg have their way, this could become an unfortunate reality. Paradoxically, CFDA is telling Congress they’re protecting you.

You think you (or we) won’t be sued in today’s era of lawsuit happy plaintiffs? Have you ever heard of a patent troll? A patent troll is someone who enforces patents they have no intention of manufacturing, against alleged infringers. It’s somebody who makes a living filing legal papers, they don’t actually make anything. In this climate, you think there won’t be fashion copyright design trolls? Right, and the fashion industry is one big family working happily together amid resounding choruses of Kumbaya. Good grief, there are churches tattletaling on other churches to state health departments over competing bake sales! If the morally superior are ratting each out over cup cakes, you think they won’t over caftans? Folks, this is going to get ugly. The CFDA, living in happy-land as they are, deny this will happen saying similar laws haven’t encouraged law suits in France or Japan yet neither of those two nations have culture as law suit happy as the United States.

It’s been two years since I last wrote of this and I couldn’t imagine it’d go anywhere considering how it so obviously favors the wealthy and famous at the expense of designers barely eking out a living but this thing has grown legs; if H.R. 2196 becomes law, it is certain to kill what’s left of the industry except for wealthy socialite fashion designers with in-house legal departments. In one fell swoop, this law will put over 90% of us out of business. Even me. Fashion-Incubator will become an artifact, who will need it? You all will have to speak out. Congress has been misled, they think they are helping you!

The cost of doing business has just gone up astronomically. You’ll have to hire a lawyer, pay for searches through a design database of all existing design registrations. You thought a trademark or logo search was bad? I have no doubt there’s over 10,000 clothing designs out there for every logo. This will cost a fortune. But, you’ll have to do it if you want to stay in business. And those of us left standing will have to have our own lawyers to check up on you and draw up contracts and buy more insurance, our prices will double if not triple. Somehow I don’t think consumers will be happy. Assuming we could afford to shop at Neiman’s and Nordstrom’s, few society designers cut anything larger than a size 12 and I for one am not thrilled at the prospect of mini-skirts, navel grazing tops, tepid/garish colors of whatever constitutes the fashion trends dictated by elite designers.

Even with proof of registration in hand, you will have to produce your registered design exactly as sketched. No design changes or iterations in process are allowed, otherwise you’ll have to start over and re-register a new design. Forget shortening that sleeve, changing the shape of that neckline or tapering the pant leg of that prototype. So what if it ends up looking lame and you have to start all over? That will be the new cost of doing business. Gee, how long will it take to get a line to market?

You know what the worst part is? A law professor specializing in Intellectual property told me that the standard for determining the innovation of a given design is not based on expert opinion. No no, the legal definition is based on the opinion of a non-expert, what the average Joe thinks looks similar. In other words, someone like your significant other who doesn’t even notice you’ve cut or colored your hair or are wearing a new outfit and yet they’re supposed to be the judge of a sleeve design detail? WHAT?! The average person just doesn’t notice that much* and no contractor will stake the viability of their business of what constitutes a copy if the litmus test is determined by John Q Public. So, every designer would need paper. Good luck finding a contractor otherwise.

It’s not law yet, there’s still time to speak out!

It sounds like a good idea - protect the uber creative cutting edge independent clothing designers from the the big bad corporate mass fashion retailers who steal their business when they rip off their ideas and sell mass produced cheap imitations. Too bad it won’t work that way. Mark my words, if the Design Piracy Prohibition Act (DPPA) makes it through the Senate, it will be multimillion dollar large corporate interests who back the big name designers who can afford teams of lawyers that receive ‘protection’, not the struggling independents who can barely afford their rent.

From Addovere.com: (Left: Marc Jacobs, Right: Forever 21, via Fashionista)

But look at the example above - isn’t it painfully obvious that Forever 21 copied the Marc Jacobs dress exactly? Isn’t that wrong? Well, yes, it is. And believe me, I’m no fan of Forever 21. But doesn’t this dress look like something you’d see - or have seen - in a vintage store? Don’t you think that it’s highly likely that Marc Jacobs (or even more likely, one of his 80+ design staff) copied and tweaked the design of an actual vintage dress? Leveraging vintage clothing for ‘inspiration’ is standard practice in an industry that demands dozens and dozens of ‘new looks’ from designers every few months… who are designing for an audience grown accustomed over the past decade plus to ferreting out vintage clothing because it’s so much cooler than the crap in the mall. Don’t believe me? Just put the Marc Jacobs & Louis Vuitton documentary in your Netflix queue and watch the practice in action. When I got the chance to visit and interview the premiere vintage supplier in NYC (I won’t cite their name because I didn’t ask for blogging rights at the time) they explained how their top stylist would pull together a set of items from their massive collection, create an inviting display, and would regularly have top name designers (or their staff) walk in the door and say ‘I’ll take it all’ and there it would be, 3 months later, strolling down the runway.

Marc Jacobs may have risen to fame and fortune based on his genius ability to co-opt, tweak and disribute an indie aesthetic to hipster celebutantes around the globe, but anyone who designs for Louis Vuitton can hardly be labeled and indie designer. What do the real indie designers  - the one this law is supposed to champion and protect - think about the DPPA? Stay tuned as I explore this issue further in my next post.

According to Gawker, he can dish it but he can’t take it:

from Gawker.com

Shepard Fairey is America’s darling, ever since that Obama ‘HOPE’ poster. The AP looked like jerks when they complained about him stealing their photo. But! Fairey will sue your ass for stealing his brand, quick.

See, if you try to sell anything featuring the word “Obey” you are totally stealing from Shepard Fairey, and he will instruct his attorneys to send you a threatening cease and desist letter, because he keeps shit real like that. Some guy in Pittsburgh sells little baby Steeler mascots with the phrase “Obey Steeler Baby.” Shepard Fairey demands that he stop infringing on his trademark, which he originally made famous by ripping off the image of Andre the Giant!

In case you’ve been living under a rock, Fairey is involved in a high profile legal dispute with the Associated Press over the source photo of his iconic, ubiquitous Obama campaign poster.

And let me state for the record - because I know I’m about to incur the ‘you just don’t get contemporary art’ disdain - that in this specific instance of the Obama poster I side with Fairey’s argument that the photo was sufficiently altered to be considered artistic fair use.It is Shepard Fairey’s previous legal battles with copyright/plagiarism issues that are far more juicy, and his recent meteoric rise to fame in conjunction with the Obama poster has reignited this controversy.

example of Fairey's appropriation taken from Vallen's art-for-a-change.com expose

I know full well that the last thing I’m able to do is resolve the complicated questions of how copying interfaces with the art world, so I’m going to include excerpts and links from some of the more notable commentary and let you be the judge:

Let’s start with Rachel Maddow, who scored and next-to-impossible-to-get interview with Fairey last night. I was a little disappointed, however, that she failed challenge Fairey in any way. Was this her own proclaimed admiration of his Obey years or an agreement with Fairey that was a condition of getting the interview? Because I find it hard to believe that Maddow of all people did not do her research.

The Fairey critique that’s inspired the most ‘you don’t get contemporary art’ criticism is the exhaustive and biting article by Mark Vallen filled with side by side photos of Fairey’s work and their uncredited sources.

Plagiarism is the deliberate passing off of someone else’s work as your own, and Shepard Fairey may be unfamiliar with the term - but not the act. This article is not about the innocent absorption of visual ideas that later materialize unconsciously in an artist’s work, we do after all live in a maelstrom of images and we can’t help but be affected by them. Nor am I referring to an artist’s direct influences - which artist can claim not to have been inspired by techniques or styles employed by others? What I am concerned with is the brazen, intentional copying of already existing artworks created by others - sometimes duplicating the originals without alteration - and then deceiving people by pawning off the counterfeit works as original creations.

(more…)

While many luxury retailers are taking their marketing under the radar, appealing to stealth wealth and discreet luxury, Saks Fifth Avenue is taking a bold move in the opposite direction.

Saks Fifth Avenue shopping bags. Image from NYTimes.com

Their Spring 2009 ad campaign cops a graphically bold stance of shopping with an aesthetic of defiance lifted directly from none other than… the icons of communist propaganda. Whether it makes you cringe, gag or crack and ironic smile, such an open embrace of socialist chic as a ploy to stimulate carefree consumerism is a sure reverberation of the hairpin turn in the zeitgeist. Eric Wilson writes for the NY Times: Consumers of the World Unite

SHOPPING, these days, is a political act. If you are brave enough to buy a $2,000 Prada handbag, you might rationalize that you are helping to stimulate the economy. Solidarity, people!

Saks Fifth Avenue, which has surely felt the recession’s sting, is taking just such a fist-raising stand with its spring marketing. The campaign is inspired by the bold graphic designs and propaganda spirit of Constructivist art — although it is intended to be tongue-in-cheek.

Saks Fifth Avenue ad. Image from NYTimes.com

So is Alexander Rodchenko (the constructivist artist who’s work ‘inspired’ the Saks campaign) rolling in his grave? Not necessarily. I emailed the Times article to my friend who’s actually read Karl Marx, and here’s what he had to say:

But when you view it ala Marx, it makes perfect sense. To him, all art is propaganda. And propaganda is simply anything that promotes a point of view. The Soviets were using their
propaganda to promote nationalism; marketers are using the same images to promote
consumerism, by simply making small changes (prettier models, having the lines move
towards products). It’s still a “Join our bandwagon” message.

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from an old Anthropologie catalog

When I first read the WWD article, Anthropologie Engages Shoppers with Craft Workshops, (the store was hosting a series of ‘reinvention workshops’ teaching customers to make gifts from articles they already had in their closets) I was perplexed, and more than a little suspicious. Why would a company whose core strategy is to sell this vintage, crafty, nostalgic boho aesthetic for a hefty premium encourage people to circumvent their cash registers?

At the December workshops, customers learned how to refashion blouses, rework cardigan sweaters, revamp gloves and hats and renew scarves…Other seminars were devoted to making hair accessories, wrapping packages with scarves, reinventing plush toys and revitalizing ornaments.

…the reinvention workshops “aren’t designed to sell anything,” said Wendy Wurtzburger, Anthropologie’s chief merchandising officer, explaining that the goal is to teach women how to get more out of the existing items in their wardrobes.

Really? The chief merchandising officer is defying the message of overconsumption to teach women to get more out of what they already have?

From a post on Jezebel.com

The retailer said giving new life to old things is especially relevant given the state of the economy, adding that customers will discover how “extraordinary and meaningful a hand-crafted, remade gift can be.”

But… doesn’t that just highlight how extraordinarily unmeaningful gifts purchased in a chain store showcasing a non existent lifestyle and made by sweatshop workers are? (more…)

The other week I heard two back-to-back pieces on NPR’s All Things Considered about a bill that passed creating a new Intellectual Property Czar. The first made me queasy, the next provided some comic relief. Let’s start with the troubling news from Laura Sydell’s What Will The Intellectual Property Czar Do?

The bill also has a forfeiture provision that will allow law enforcement to seize assets from anyone accused of intellectual-property theft — even before they are proven guilty. It also authorizes more than $50 million to help state and federal law-enforcement agencies.

…According to the U.S. Chamber of Commerce, 40 percent of the nation’s economic growth comes from intellectual property, including music, movies, pharmaceuticals, fashion and software. But the biggest backer of more law enforcement is the entertainment industry.

The focus of both articles is illegal file downloading and copying. My ears perked up when I heard the word ‘fashion’ but clothing design did not appear again in either article. WWD wrote Anticounterfeiting Measures Seen as Boost to Battle Bogus Goods, but it focused only on counterfeit goods - those exact replicas of branded designer goods emblazoned with trademarked logos and meant to pass off as the real thing - and not on knockoffs - garments and accessories that are ‘inspired’ by designer pieces, but do not contain logos and labels of the source luxury label.

As we know, copies of a fashion designer’s intellectual property - from the legitimately branded to the knockoffs - are still tangible garments that still require human hands to feed the physical components through equipment largely unchanged over the past 50-100 years.

catlike agility

Contrast this with the entertainment industry, which 100 years began its rise to economic and social power only because new technological developments enabled it to produce copies of works that could reach and audience beyond live performances in theaters and concert halls. The twentieth century saw the reign of the producers and production companies - those in charge of the expensive technology required to capture, edit and distribute the images and sounds of the cultural commodities. But a classic, poetic example of dialectics, the march of technological innovation that enabled the fortunes of Hollywood executives is now threatening their demise. So just like a mega corporate conglomerate, it turns to the U.S. Government to call in the favors of campaign contributions act as personal henchmen for their industry. While the bill sailed through Congress, at least it was good to see that the Justice Department demonstrated some opposition: (more…)

I do so look forward to the Ask Hadley column each week in the Guardian UK. Today reader Sarah Morris writes in with the following question:

On a recent documentary Kate Moss seemed to design her collection for Topshop by just getting things out of her wardrobe or finding vintage pieces and telling Topshop to copy them. Is this how designers work these days?

Rei Kawakubo for Comme des Garçon's "Body Meets Dress, Dress Meets Body" collection, S/S 1997

Her response boils down to a few points: Most everything wearable and flattering has already been done before, whenever a designer does something truly new and never seen it is most often labeled outrageous and incomprehensible, and people want vintage anyways so why not remake it and let the rest of us enjoy what others did in decades past? But you should read it in her words:

…there they are, making clothes that are quite nice and what do they hear? “It’s not original!” “You just nicked that from Oxfam!” “My gran wore something like that 70 years ago!” I mean, WTF? Poor Marc Jacobs suffered a true arrow of outrageous fortune earlier this year when some totally tedious old Swedish dude complained that the pattern on a scarf in Jacobs’ spring/summer collection was maybe a tiny bit similar (”tiny bit similar” being Swedish for “exactly the sodding same”) to one his dad designed a trillion years ago in a totally foreign country and therefore completely irrelevant.

But let’s look at this from a different perspective. Clothes are great but after more than 2,000 years, most things have been done with them. This explains why Coco Chanel’s designs from the early half of the 20th century keep being “referenced” by designers today, such as Luella Bartley and that kleptomaniac, Marc Jacobs. And why not? Why should we, modern-day dwellers, be denied nice clothes just because we were unfortunate enough not to have been born in 1922?

Anyway, when designers do try to reinvent the wheel and proffer things such as wetsuits with giant cutouts trimmed with ruffles, what do they get for their pains? A massive photo in the tabloids with some hilarious and never-before-seen headline of the “Do Designers Really Expect Us To Wear THIS?!?!?!?” ilk.

So take your pick, Sarah: either an expensive version of something your mum gave to a charity shop 27 years ago, or a humpbacked coat made out of patent leather and fish scales. Yes, this does raise the query asked by pretty much everyone who’s seen a Turner prize exhibition: why can’t modern designers make nice things like in the old days? I cannot resolve the mystery as to why instead of Rembrandt we are stuck with Damien Hirst and his Blue Peter-esque skull, diamonds and glue gun, but I would argue that some designers today are, if not exactly Michelangelo, pretty handy with the ol’ needle and thread. And also pretty good at spotting things to copy, which, after all, is a talent. Well, sort of.

My previous posts on who started the infinity dress and designer’s response prompted my friends to go on a hunt for the original iconic Halston version. First Spinsta sent me this link to a photo of Jennifer Aniston in the revived 2008 number:

Halston 08 from Shop Diary

And then knowing she’d seen the original, my friend Tina Sparkle dug up a visual anthology of Halston’s work (Halston by Steven Bluttal, ed.) with a photo of…. an infinity dress, circa the early seventies:

from 'Halston' by Steven Bluttal, ed.

For starters, let me state unequivocally that I think it’s fantastic that contemporary designers, from boutique to mass to DIY amateurs, are currently producing their own versions of this for sale. It’s a flattering, iconic design and I believe it should be available for women to make and buy and wear. But of course, any arguments by contemporary designers that this dress is ‘their’s exclusively’ are now null and void. ( I also need to clarify that Butter by Nadia’s comment on my post did not argue that no one else should make an infinity dress, but explained that her inspiration for the dress was her original idea and not a knock off. It was an anonymous commenter on a Fashionista ‘Adventures in Copyright’ post that cited Butter by Nadia as a designer hurt by mass retailers copying her work.)

What I love about this is that it provides such a shining example of why this CFDA proposed copyright law would turn into such a tangled mess. Over and over I hear and read how this law would protect independent designers. Well, only if they are able to afford the kind of legal teams that can challenge and defend themselves against the deep pocketed global corporate conglomerates that dominate the industry and fund the big names. What makes you think the Halston execs (or Gucci execs or Ralph Lauren execs, etc.) wouldn’t go after the indies?

As much as I’d like to believe that truth and justice prevail, everything I’ve seen points to ‘the ones who can afford the best/most lawyers’ prevail. The vast majority of independent designers are working overtime and struggling just to pay the rent on their studios and get backing for production. They have neither the time nor the cash to sue the big labels that copy them. In fact, what’s to prevent those same big labels from lying and claiming the indies copied them and making them cease and desist?

Let’s visualize for a moment a bunch of lawyers in court armed with all sorts of pictures of versions of this dress trying to arguing about the definition of ’substantially similar’ and whether or not it applies. “But they’re all wrap dresses!” “But the new Halston is not a ‘wrap’ dress!” “But this one is short!” “But this one is plaid!” (A copyright lawyer for the fashion industry pointed out to me with the smug superiority that only a lawyer can have that this phrase is what ‘clarified’ this proposed law and made it viable.)

Where do we draw the line? And given that fashion, by definition, is such a rapidly expanding, moving, morphing target, this line will have to be drawn over and over again, for each trial. Since human female bodies, with their two legs, two arms, two breasts and a torso are pretty ’substantially similar’, take a look at the slopers in basic patternmaking texts and note the similarity of those. What makes a design truly superior to the knock off are the subtle differences in proportion and fit painstakingly created by shaving or adding those 1/4 inch here and 1/8 inch there. When you take printed fabric design out of the equation (currently the only thing protected under the copyright law and where my lawyer friend makes her living) and compare the flat pattern of a designer piece to the crummy autoCAD generated knock off in Forever 21, any substantial similarities on a dress form devolve into confusing technical nuance. This, my friends, is no territory for lawyers.