Did Tom Wolfe have it right when he claimed that much that is strange and crazy and wonderful in American culture has a way of starting out on the West Coast and eventually filtering East?

For those of us far more fascinated with the inception and dissemination of fashion trends than the consumption of them, the neighborhoods of San Francisco have always been a buffet of people watching for the street style destined to seed the runways and department stores. And Guy Trebay of the New York Times nails it in his opening line of Fashion Diary: The Tribes of San Francisco:

IF a decade spent following the fashion flock will teach you anything, it’s that fashion people seldom have much to do with generating style. This little-appreciated truth naturally comes to mind as the Fashion Week juggernaut lumbers toward Manhattan, a rolling, continuous loop of live-streamed, Tweeted product-placement set to ambient glamour-buzz cranked out by the Industrial Hype Machine.

…What she likes about San Francisco style, said Ms. Grim, who is in her early 40s, is that the town is remarkably free of fashion hierarchies and in-crowd tyrannies. There is no shoe of the season here. There is no It bag. Except perhaps for the pulp-novel heiresses Vanessa and Victoria Traina (who anyway are almost New Yorkers), there are no Vogue-anointed darlings-du-jour.

Photo: Heidi Schumann for NY Times

One thing notably absent, however, in Trebay’s analysis is the influence of Burning Man culture on the San Francisco fashion scene. Given the thousands of key Burner players whose default world residence is the bay area yet keep their culture alive and well year round, I find it hard to believe that their DIY radical self expression anti-corporate style wouldn’t permeate out onto the streets.

Interestingly enough, even though the quirky, innovative aesthetic is pervasive, my handful of trips to San Francisco hunting for the corresponding retailer sources - especially local designers - have left me standing mostly in resale shops or malls in tourist destinations. Ever so often there will be a brave entrepreneur opening a collective of local designers, a curated vintage store in a high rent district that mixes in refashioned pieces, or a boutique carrying avant-garde designers from NY… but those are the exception, not the rule.

Even locals tend to concede, unasked, that San Francisco has historically been an also-ran in fashion terms. “Every time a designer from here has a little bit of success, they disappear to New York,” said Gladys Perint Palmer, executive director of fashion at the Academy of Art University, whose fashion department has an enrollment of 2,500.

Allow me to digress for a moment… 2500 fashion students? That’s about 1000 graduating a year, and that’s just one school in one city. A private, for-profit school with 5 digit tuition. Are there enough jobs in the industry for all of them? Um, no. Back to San Francisco…

Ms. Perint Palmer was referring specifically to Nice Collective, a San Francisco-based label founded in 1997 by Joe Haller and Ian Hannula in part to capitalize on distinctive elements of a local style that, like so much else in the Bay Area, seems to be generated by some loopy organic collective impulse rather than an editorial cabal.

It’s so good I have to restate it: “generated by some loopy organic collective impulse rather than an editorial cabal.” But really, especially since the ‘youth revolution’ of the 60s, has that editorial cabal really dictated much? I’d argue that the best they can do is distill and co-opt the shapes, colors and styling that settles out of the collective choices of the loopy ones. And where do those loopy young ones go for the raw materials of their sartorial expression, especially when their piled into shared bedrooms in sky high rent apartments? You guessed it - thrift stores. Which has over the past couple of decades seeped into the mainstream to the point of becoming a standard style option, perhaps even one with far more cred for the find than the spoon fed trends of the big stores. Trebay quotes a former department store buyer:

“The stigma attached to used-clothing is gone,” she added. “You can either spend $300 on a top at Neiman Marcus or go to the thrift store and buy a bag of clothes for a tenth as much.”

Exactly. And this leaves one with far more time and disposable income for living, not just posing like a well dressed doll.

…Or you can do both and then mash up the results, as the women of the Mission tribe do.

“Those girls are the local Holly Golightlys,” Mr. Ospital of M.A.C. said of women like Rachel Corrie, a waitress at Tartine, who as she left work last week hopped onto her bike wearing what looked like a gingham onesie, feet shod in gladiator sandals and a velvet equestrian hunt cap passing as safety gear perched atop her head.

Girls like her are all over the Mission. You see them flying down Valencia Street on Vespas, their wildly improvised get-ups composed of, say, rags scavenged from the Bay Area’s fabled thrift shops (Out of the Closet in the Castro, Eco-Thrift in Vallejo, the Goodwill outpost just off the 101 Freeway in San Rafael), Marni skirts, vintage SM leathers culled from an eclectic assortment of goods at Marc Josef’s locally legendary antiques shop, Tradesmen, and wingtip shoes.

…“People will wear vintage with some D.I.Y. thing they made themselves with some piece that they couldn’t resist in a boutique,” Ms. Grim said. “They’re not afraid to mash things up.”

Because it might be that one innovative, interesting piece from the boutique, something that might have been inspired by vintage, might even have been made from vintage, but definitely didn’t happen prior to this decade… that’s the piece that communicates that subtle status that signals to other members of the targeted tribe that you’re doing well enough, and care enough, for bits of investment dressing.

“It’s a very difficult city to read,” Mr. Lopez said, owing largely to the local distaste for ostentation and hype, a suspicion of anything that requires a high-degree of difficulty to pull off and that people spend a lot of their lives in cars.

“San Francisco is definitely about quiet style,” he said. “People care. They have the clothes, but they wear them in private. They bring in the most amazing stuff for consignment and I’m always thinking, ‘Where did you wear this thing?’ ”

Stealth Wealth indeed.

Oh please let it be true. Susannah Frankel writes for The Independent, New model army: Why fashion has fallen out of love with its A-list clotheshorses:

The symbiotic relationship between fashion and celebrity, as seen everywhere from the red carpet to an increasingly sophisticated print media, has been the most ubiquitous and, it almost goes without saying, money-spinning phenomenon of the era. That is, until now.

This time last year – and as presciently as ever – the Prada Group sent out a press release to accompany the launch of its new women’s wear campaign for Miu Miu stating, in the opening paragraph, that it marked “the return of the model as opposed to the celebrity” to fashion’s most hallowed frontline. Shot by the super-fashionable duo Mert Alas and Marcus Pigott, the images established just that, featuring an array of painstakingly sought-out new models remarkable for their fresh personalities and entirely unrecognisable faces.

In February this year – in a move that was equally unprecedented – Marc Jacobs very publicly rid his catwalk show’s front row of the formerly requisite A-list contingent, telling the influential American Vogue website Style.com that his love affair with celebrity was over.

“It generated so much press [but] at a certain point it was like, ‘Did anybody actually watch the show?’ “

Snooki proudly sporting Coach

And remember, Marc Jacobs has the likes of Madonna in his front row. But in this new era increasingly dominated by reality TV, the newest crop of ‘celebrities’ aren’t always as aspirational. Access Hollywood asks Is Snooki a Pawn in the Gucci/Coach Bag War?

According to The New York Observer’s Simon Doonan (via Celebuzz),  Snooki is a pawn in a reported raging style war - with the weapon of choice being supple fine leather..Doonan claims that various fashion houses are engaging in “preemptive product placement” or “unbranding,” by sending Snooki new purses from their competitors’ collection…He adds, “The bottom line? Nobody in fashion wants to co-brand with Snooki.”

Back to Stengle quoting Karl Lagerfeld on his decision to use professional yet anonymous models:

… ”Why? Because I love them. They have the right look and class.” Ah, class … and with this in mind, he adds, “Their overexposure in ‘people’ magazines also makes it that one may be a little tired of celebrities and the red carpet.”

Ah yes, the now ubiquitous red carpet. With the wall of brands behind it. When even a nobody like me can all too easily find herself on one, you know it ain’t that special anymore.

Stengle writes an eloquent historical summation of the rise of the celebrity/fashion phenomenon:

It wasn’t until the Eighties – significantly the decade in which designer fashion first identified the potential of its power – that the relationship between fashion and celebrity began to gather momentum, and the seeds were planted for the behemoth it has become today. Giorgio Armani dressed Richard Gere in American Gigolo, and the response was such that the great Italian designer soon ensured that the front rows of his twice-yearly men’s and women’s wear shows were as star-studded as his jewelled evening gowns. Gianni Versace was quick to enter the fray. Speculation was rife as to just how much either designer was prepared to pay anyone, from Sofia Loren to George Michael to attend their shows, resplendent, it almost goes without saying, in Armani or Versace designs.

Versace, in particular, went on to invest huge amounts of capital in advertising campaigns shot by big names such as Irving Penn, Bruce Weber and Richard Avedon that featured everyone from Elton John to Madonna (yes, her again) and from Jon Bon Jovi to Lisa Marie Presley. If ever designer muscle was fully flexed, it was here. The fact that the label had the weight to employ not only the world’s most feted photographers but also so many of its most famous stars was a potent formula that few – before or since – could ever match. By the late Nineties, it was rumoured that Nicole Kidman was being paid no less than $2m simply to wear Christian Dior to significant social occasions.

It was also during this period that fashion magazines began featuring celebrities as opposed to models on their covers on a regular basis – and it was doubtless quite a coup when, for the December 1998 issue of American Vogue, Anna Wintour landed Hillary Clinton for that purpose.

After the rise… the fall:

Within five years, however, the effect of such originally ambitious intentions had been watered down beyond all recognition. Testamant to this was the appearance of the alleged TV “stars” Amanda Holden, Hermione Norris, Tamzin Outhwaite and Ulrika Jonsson on the cover of the November 2002 issue of British Vogue, a decision that moved some high-minded commentators – and Sir Roy Strong, the flamboyant former director of the Victoria and Albert Museum, in particular – to bemoan a celebration of the “trash-ocracy” in British culture. This was hardly “aspirational”, the thinking went, and that, surely, was the point of such glossy titles.

Yes, the ‘trash-ocracy’ is the opposite of aspirational. And not what middle class suburban moms aspire to with their handbag purchases.

From Neiman Marcus' fall offerings

The Associated Press article featuring Neiman Marcus’ Fashion Director Ken Downing’s predictions for the fall has been widely featured in newspapers around the country. But the declarations of Downing I found most useful were not his recommendations of what to buy this season (feathers, lace, pantsuits, whatever). Of far more interest were the words on what compels her to buy at all, which are especially relevant in a belt tightening economy:

“A customer’s not interested in buying something she already owns,” he said. “She wants something that has absolute newness that she just desires and can’t live without.”

Ah yes, the perfect quote to support my irresistible sells fashion category!

Author Jamie Stengle offers a few more gems that give us further insight into the process of forecasting and influencing the trends we see in the malls at every price point:

Downing, luxury retailer Neiman Marcus’ fashion director, has been digesting designer offerings from New York to London to Paris to Milan to come up with a list of trends sure to get people running to the mall.

“I really create the attitude and the message and the mood of the season that the company will be following,” Downing said.

His fashion forecast is then integrated into everything from the Dallas-based company’s (www.neimanmarcus.com) marketing message to what buyers look for to how mannequins are dressed.

Do not try this at home

I really like Stengle’s use of the term digesting in reference to the trend distillation process. No, all the big name designers do not coordinate their lines around specific trend messages.

To create that trend list, Downing watches for recurring themes at fashion shows around the globe. Then he checks out whether designers are producing enough of those trendy items he’s honed in on to fill store racks.

“We start to talk about do we have the critical mass to make these bold predictions?” he said.

For instance, he said, “If we believe in green, we need to have green everywhere.” (This fall, by the way, green will be everywhere, he says, especially in the military-influenced olive.)

Boots of all heights are also in the fall forecast, he said. And a structured handbag is a must, not to mention pearls, “ropes and ropes” of them. Also, he says, keep an eye out for capes, ponchos and vests.

Olive green military? Excellent. Easy to thrift. And looks good with my new red lipstick kick. Ropes and ropes of pearls? Hello 80s retro Chanel knock off possibly spurned by Patricia Field’s god-awful costuming in Devil Wears Prada? And ponchos? Seriously? C’mon, we were giggling about that in 2003, it’s got to be a least a decade before you can try that again. If you’re going to invest actual money, go for that pantsuit with a killer cut. Frilly lace tops can be found at the Buffy.

I’ve venture to guess that the large majority of investors - particularly the professional ones - might admit to following their gut to some degree, but would still insist their decisions are informed and rational ones. But how different are their purchases and discards than a teen at the mall?

David Doubilet for National Geographic

Jason Zweig explores the latest attention getting scientific theory that everyone is talking about in his article for the Wall Street Journal, So That’s Why Investors Can’t Think for Themselves:

Why do investors so often seem to resemble a school of fish, all changing direction together?

…A study published last week in the journal Current Biology found that the value you place on something is likely to go up when other people tell you it is worth more than you thought, and down when others say it is worth less. More strikingly, if your evaluation agrees with what others tell you, then a part of your brain that specializes in processing rewards kicks into high gear.

In other words, investors often go along with the crowd because—at the most basic biological level—conformity feels good. Moving in herds doesn’t just give investors a sense of “safety in numbers.” It also gives them pleasure.

That may help explain why market sentiment can change so swiftly, why true contrarians are so hard to find and why investors care so much about the “consensus view” on Wall Street.

Most of our brains are programmed to reward us when we swim with the school.

The brain scans showed that as soon as people learned they had chosen the same song as the experts, cells in the ventral striatum—a reward center wired with dopamine neurons that respond to pleasures like sugar and sex—fired intensely.

“If someone agrees with your choice, it’s intrinsically rewarding in the same way food or money is rewarding,” says one of the experimenters, Chris Frith of University College London.

Why might other people’s estimates of what something is worth lead you to change your own? Their appraisal could make you unsure that yours is correct. You might become more popular once you agree with others, or joining the experts may make you feel like one yourself. “We are very social creatures,” says Prof. Frith, “and we are desperately keen to be part of the group.”

In 1969 sociologist Herbert Blumer was the first to publish a theory that the fashion mechanism operated in all fields of human endeavor, not just clothing. I’ve included these quotes from his theory of collective selection (this blog’s namesake) in a previous post on how most economists were fashion victims of their own thinking and completely failed to predict the crash of 08, but they’re so good they bear repeating (emphasis my own):

It is necessary, first of all, to insist that fashion is not confined to those areas, such as women’s apparel, in which fashion is institutionalized and professionally exploited under conditions of intense competition. As mentioned earlier, it is found in operation in a wide variety and increasing number of fields which shun deliberate or intentional concern with fashion. In such fields, fashion occurs almost always without awareness on the part of those who are caught in its operation. What may be primarily response to fashion is seen and interpreted in other ways – chiefly as doing what is believed to be superior practice.

Not only are most investors (and artists and psychiatrists and economists) blind to their immersion in the fashion mechanism, they get downright offended when you propose that their decisions are informed by anything short of ’superior practice.’

…The absence or inadequacy of compelling tests of the merit of proposals opens the door to prestige-endorsement and taste as determinants of collective choice. The compelling role of these two factors as they interact easily escapes notice by those who participate in the process of collective choice; the model which emerges with a high sanction and approval is almost always believed by them as being intrinsically and demonstrably correct. This belief is fortified by the impressive arguments and arrays of specious facts that may be frequently be marshaled on behalf of the model. Consequently, it is not surprising that participants may fail to completely to recognize a fashion process in which they are sharing. The identification of the process as fashion occurs usually only after it is gone – when it can be viewed from the detached vantage point of a later time. The fashions which we can now detect in the past history of philosophy, medicine, science, technological use and industrial practice did not appear as fashions to shoes who shared in them. The fashion merely appeared to them as up-to-date achievements!

Zweig sums up more on the brain chemistry behind this:

The experiment also showed that learning that the experts agree with one another—regardless of whether you agree with them—triggers activity in the insula, a brain region associated with pain and heightened body awareness. This suggests that the agreement of others may have a special ability to grab our mental attention. No wonder a consensus opinion is almost impossible for many investors to ignore.

He also calls out the myth of the market as a rational and impersonal mechanism:

Benjamin Graham, the founder of value investing, wrote that “the market is not a weighing machine, on which the value of each issue is recorded by an exact and impersonal mechanism, in accordance with its specific qualities.” Rather, he added, “the market is a voting machine, whereon countless individuals register choices which are the product partly of reason and partly of emotion.” Herding, Graham understood, is part of the human condition.

Zweig’s prescription? Do everything you can to go against the herd and establish tracking mechanisms for your decisions to go back and evaluate more objectively:

Thus, if you buy individual stocks, you should note which way the herd is moving—and go the other way. You should get interested in a stock when its price gets trampled flat by investors stampeding out of it. The list of new 52-week lows is a rough guide to what the voting machine has been trashing lately. Then run your own weighing machine, studying the company’s financial statements, products and competitors to determine the value of its business—while ignoring the current price of its stock. And make a permanent record that thoroughly details your rationale for making the investment. That way, you set in stone exactly where you stood before the herd began trying to sweep you away.

The most wonderful interview with Tom Ford appeared on Fresh Air the other day. Ford speaks on how fashion reflects a moment in time:

Fashion is very quick. It’s very disposable. It’s immediately - it tells you exactly where we are in our culture, especially women’s fashion.

If we’re having a glitzy over-the-top moment, fashion is very glitzy and over-the-top, you know, over-the-top. If we’re having a moment where things are, you know, we’re in a recession, fashion becomes quiet.

Gucci in the late nineties

Terri Gross asks:

Of all the things that you’ve designed, do you have any favorites that you really hope will endure because you think they were wonderful?

Ford replies:

I do. I have to say, I think my last few collections for Gucci and for Yves Saint Laurent in 2003-2004, in terms of complexity and construction, were some of the most interesting things I ever designed because I had learned at that point how to make more complex clothes, both cerebrally as well as technically.

And I had worked with a great atelier in Italy for Gucci and in Paris for Saint Laurent. So, I had learned a lot. However, the collections that I feel influenced popular culture the most were early on, in 1995, 1996.

And I think that those were the collections that I’ll be remembered for because at that particular moment in time, fashion was in one place. It was very subdued, very sedated, and in a sense, I brought back sensuality and sexuality to clothes. And the things I did at that time were simpler in construction but maybe more powerful in content.

…the first collection I did that really, you know, brought me a lot of attention and brought Gucci a lot of attention and a lot of business were hiphuggers in velvet, satin shirts, simple coats, but what was new about them at that time was that they were very, very sensual. They were very colorful, as well. There was an enormous amount of color. And they were a throwback to a period in the 1970s when fashion was more touchable.

Benjamin Schupp on Conceptar.org

And then it gets really interesting as Ford contrasts the sensuality of the seventies with the hard edge ‘femme bot’ sexuality of now:

Today, you know, fashion is not - our beauty standard today is harder. It’s beautiful but it’s off-putting. It’s like, don’t touch me, I’m hard.

It’s so interesting how female form, less male form, mirrors where we are culturally, aesthetically, as well as - for example, right now everything is pumped up.

Cars look like someone took an air pump and pumped them up. They look engorged. Lips pumped up, breasts pumped up, everything is pumped up. And it’s also kind of off-putting.

It’s sexual but in such a hard way that it’s, for me, not sexual at all, whereas the 1970s, breasts were smaller. People were not wearing bras. Farrah Fawcett’s sexuality and sensuality was a very touchable sexuality. She was kissable. She was friendly.

And that was what I brought back in the ’90s with some of my early collections for Gucci that we hadn’t seen in a while. And I think that right now we’re in a very hard moment and off-putting. I mean, look at shoes today, women’s shoes. They couldn’t possibly get any higher and meaner and sharper. But then again, you go and watch most films today, they’re violent, and we’re living in a world that is, at the moment, quite hard.

Terri asks him to elaborate on the breasts issue:

I don’t understand all these breasts right now, and they don’t look like breasts. They look like someone’s taken a grapefruit half and inserted it under your skin. I mean it’s - it doesn’t even bear any resemblance to what a natural breast looks like. But we’re starting to think that this is what women should like.

And young girls are looking at these breasts and thinking, oh, I need to go have my breasts done because they’ve lost touch with what a real breast actually looks like. I find it fascinating. I find it disturbing. I mean, you could consider it more fascinating because we’re becoming post-human.

…We are actually - we are. We are actually starting to manipulate our bodies, because we can, into a shape. We are becoming our own art. But what happens for me is that it desexualizes everything. You know, you start to look more and more polished, more and more lacquered and you look like a beautiful car. Does anyone want to sleep with you? Does anyone want to touch you? Does anyone want to kiss you? Maybe not because you’re too scary.

But you’re beautiful, you’re glossy, you’re shiny, but you’re not human. Very interesting. And I say that in a very detached way, I’m not making a judgment about it. I’m just saying it’s fascinating culturally.

When Simon Doonan, Creative Director of Barney’s, (one of the handful places where fashion forward designers have access to the rare slice of edgy yet wealthy clientele that can afford their pieces), the extremely influential guy who the rest of the fashion industry knows to pay attention to… when Simon Doonan declares The Death of Trends then it’s a zeitgeist shift worth pondering. There are still going to be shapes and norms that we collectively select (whether you follow them or rebel against them) but I see this as more of a backlash against the accelerated cycle of the spending on disposable clothing hamster wheel and a coalescing around an iconic vocabulary of modernist elements; classics that are tweaked and revised with the times.

photo by Roxanna Lowit for the Jewish Daily Forward

Doonan writes for the Observer:

Fashion is no longer icy and aloof. Fashion is a massive, forgiving, ambiguous melting pot where people and trends can dig in their Lee Press-On nails and hang on for years and years without ever being out.

He goes on to list a few examples:

Uggs. Style pundits may have broadcast their out-ness for years, but last week’s snowy streets were packed with Uggs-sporting fashion plates.

There is a delicious personal irony in this example given that back in 2004 Uggs were cited in a lengthy discussion in Fashion Theory class as an example of trendy for trendy’s sake. Even though this trend might have been initiated by celebrity sitings, (so awesome to slip on between takes on outdoor shoots) could it be that they’ve had staying power because those who bought them discovered they were super comfortable and well made and lasted forever?

Skinny jeans. Despite their supposed out-ness, they have managed to become a fashion staple, especially when tucked into riding boots. Tally ho!

Key term, “Fashion Staple.” So they became ‘in’ a few years ago as the bootcut finally reached mass market saturation, but could it be that one fashion staple was traded in for another? Could it be that people want fashion staples?

Filson clothing, used as an example of 'American Workwear' trend on brand consultancy blog "We Are The Market"

Of course, now that the skinny jean is headed for eventual  mass market saturation, it will eventually go the way of the mom jean (which has been ‘out’ almost long enough to be revived…), so it’s not as if the trend cycle is no longer. But given that ‘fast fashion’ retailing cycles had accelerated to the point of new trends every six weeks, could it be that more and more consumers are weary of this and seeking alternatives?

These alternatives - especially to spending too much - have been found for the past few decades in the ‘indie’ and ‘alternative’ subcultures continued fascination with vintage. As these ‘trends’ arise in the vintage industry about which items are hot and eagerly sought after, it was a natural progression for designers to use said items as inspiration for re-issues.

Kanye West’s girlfriend Amber Rose made fashion news when she sported a slinky hooded dress to the Chanel runway show.

photo from Huffington Post

And immediately I thought of my earlier post admiring the innovative 21st century hijabs for modern Muslim girls.

from Capsters.com

And given that Lindsay Lohan wore a hooded dress on the Golden Globes red carpet, how can a bona fide trend be far behind? Although talk about cultural appropriation, given the rest of the outfit I can’t imagine the Muslim community approves of the fashion twist…

photo from Huffington Post

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!