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.

Although I stubbornly managed to avoid the whole affair last year, I did manage to get pulled into a little bit of second annual Austin Fashion Week this year to support friends and even write and deliver my very own speech giving some advise to indie designers. So while fully ‘fessing up to my own lifelong distrust of the hype and posing inherent in such events, I’ll also try to take a step back and look at AFW with an objective eye and appreciate how this echo chamber of self congratulatory promotion interfaces with the grassroots innovation and experimentation that I enjoy so much.

Red carpet fanfare sizzled in the Texas sun

What I realized last night dressed to the nines while eating cheap hamburgers at a picnic table post red carpet award show is that AFW isn’t really about the actual clothes (the part I’m into) but is about cultivating the consumer. Oh yeah, that part. See, if no one is buying clothes from local designers and boutiques, how are any of the creatives supposed to make a living? I can snark about sorority girls (current and former) all I like, but if they’re not compulsively overstuffing their closets with higher end designer labels, what treasures would there be for me to discover at Buffalo Exchange once they trade in their excess?

AFW producer Matt Swinney introduces the big budget stage production for the awards show

A friend of mine who participated as a designer offered me an extra ticket to the awards show and I thought ‘what the heck?’ at least it would be good people watching. And I do have to offer some genuine respect and acknowledgement of the insane amount of work that goes into producing and coordinating all of these events. Thank goodness other people enjoy that kind of work and are willing to do it because I’m certainly not.

Having fun with the Bentley photo-op. That's me on the left and my friend and fabulous Austin designer Chia on the right. I'm wearing a top, shorts and vintage shoes from odd and various thrift stores while Chia is sporting Tina Sparkles' prize winning Little Black Dress.

That being said, I can’t help but chuckle over the irony of trying to tout Austin as having viable potential for this kind of formal (and profitable) industry when the fashionability of Austin as a hip place to live has been inexorably tangled with the slacker casual look that was advertised as a refreshing alternative to the big city pretension. Oh don’t get me wrong, the slacker hipster had a whole different flavor of pretension, but red carpets and Bentleys were not it.

Although the hipster slacker look might contribute significantly to the success of many local thrift stores, it’s not going to keep boutiques of triple digit party dresses afloat.

No, if you’re going to get the Real Housewives of Westlake to slap down the Platinum Amex for enough dresses, hair and makeup to keep these high rent boutique and salon storefronts open, then you need to give them enough opportunities to play dress up. Such as attending the AFW awards show…

In fact, for a mere $300 ($550 for two) you could get one of the ‘extremely limited’ VIP ticket packages that included not just special seating at this event, but personal shopping and princess attention. Which leads to the question that both the Austin American Statesman’s newcomer fashion writer and longtime cultural commentator Michael Barnes posed in his blog review:

Inevitably one must ask: Who is paying for all this? Surely not the starving creative class, which, in Austin, includes many of the seemingly high-end retailers in their pristine boutiques. (Just ask about their rents.) Fashion reporter Marques Harper has posed the crucial questions about what holds Fashion Week aloft, and what will do so in the future: Fees or sponsorships; ticket prices or donations?

Tina Sparkles & friend at afterparty

Insider sources (aka my designer friend with the extra ticket) told me that originally the designers were not given tickets to the $60ish per person after party. But then the producers, realizing that it would be weird to try and pull off a fashion week after party with no designers, decided to go ahead and include tickets in the packet. I also heard rumor of a kerfuffle that erupted over asking models to pony up $45 to participate. Producer Matt Swinney of event planning company Launch 787 reportedly spends upwards of $100k of his own cash each year to make this event happen, with the hopes that as it grows those tables of income/expense will turn in his favor.

He did have the cahones to jump out and claim Austin Fashion Week as his own, so it’s not as if some other event planner can do it, but truth be told I remain skeptical of anyone’s ability to turn a profit from an event of this flavor in this city in this economic climate. If you own a print shop or sell beverage napkins I suppose you saw an uptick in sales as a result of all the parties and promotions, but fashionistas everywhere are notorious moochers and as Barnes noted the “chronically underpaid creative class” can barely afford to sustain their craft, much less the hypebeast needed to promote it. And earlier that day, mere blocks from the Long Center itself, I noticed a clean cut young man standing on the side of Lamar Boulevard waving a sign offering 2 months free rent for one of the dense urban living buildings that were all the rage during the boom. The sign didn’t mention it, but I’m sure they have walk in closets and granite countertops.

My friend Malissa Long produced a fashion show held on the south steps of the Texas State Capitol and asked me to say a few words. Here’s the text:

Good evening, everybody.

My name is Claire James and Malissa has asked me to say a few words about the fashion climate here in Austin, TX (my home town) and how that might interface with the global fashion phenomenon at large. I do believe that right now and especially in the coming decade that Austin, along with the rest Texas, will offer a unique set of opportunities based on a combination of economic factors and cultural influences you won’t be able to find anywhere else.

But what I’m not going to do is stand here and tell you that if you just do what you love and believe in yourself and visualize success that all of your dreams will come true.  No, think of me more as the critical naysayer of the fashion industry - trying to cut through the hype and glamour and PR and tell it straight about what’s really going on.

Photo: Wendy Corn

While on one hand I’m going to try and offer some useful advice for those of you motivated and determined to try to make a living (or at least a side income) as a fashion designer I’m also going to try to encourage many of you to stop worrying altogether about extracting dollars and cents profit from your creative endeavors and just enjoy designing and creating fashion for its own sake. That the amateur do-it-yourselfer has just as much - and in some instances more - to contribute to the collective visual sartorial culture as the professionals.

So, what business do I have making such proclamations? Let me share a little of my background. Currently I write a blog  - collectiveselection.com. - which is a byproduct of my masters thesis work in the Textiles and Apparel Program at Cornell University. Collective Selection is a discourse analysis of what other writers and journalists are saying not just about the fashion trends themselves, but the intersection of culture, economics and politics that together create the zeitgeist - or spirit of the times - that those trends reflect.

So today here in 2010 I now have the luxury of watching, wearing and enjoying fashion in the evenings and weekends I’m not at my nice secure business casual day job. But from 1995-2002 I did manage to just barely eek out a living as an independent craft artisan - designing, producing and selling a line of hand dyed wearable art.

The name of my micro business was Colorwheels, and maybe some of you (or your parents) bought a tank top or baby romper from me at the Armadillo Christmas Bazaar or any number of local craft shows.

Like many of you, my love of fashion and costume (because for me the line was always pretty blurry) was sparked in high school. Luckily for me, my mother had started teaching me to sew in the second grade, and as soon as I was introduced to the glorious, yet still untapped motherlode of thrift stores in the 80s, it was all over.

Since the small allowance from my hard working yet non indulgent parents combined with the meager paycheck earned checking groceries at Randalls couldn’t even get me in the ring with the popular girl mall princesses - and the identical oversized shaker knit sweaters, acid washed ankle zip guess jeans and hair bows they were all wearing were excruciatingly boring anyways, I decided it would be way more fun to spend that bit of cash on giant bags of vintage finds, get out my scissors and sewing machine and see how I could horrify my conservative mother while at the same time making the halls of high school a whole lot more interesting.

25 years ago refashioning vintage was somewhat of a radical and unusual defiance of the corporate mall culture that completely dominated the fashion choices available at the time. How awesome to look around me today and see refashioned vintage sold in stores, taught in classes, featured in television shows. It’s infiltrating and spreading everywhere as an accepted alternative that continues influence the mainstream.

Over the past 15 years I’ve watched the fashion scene in Austin grow exponentially. Every year there are more and more fashion shows on the calendar, more stores featuring local designers and more places to set up a pop up tent and sell directly to the public.

And this explosion of interest in fashion we see in Austin is our own Texas indie flavored microcosm of a global phenomenon. Whether its new green business models of production or an underground line of clothes that editors are buzzing about or a bold and unusual dress turning heads in a nightclub - the momentum is coming from individuals at the grassroots level pursuing their creative visions. The best the corporate conglomerates of brands beholden to the instant gratification of shareholders can do is try to cool hunt and co-opt the authentic innovation of street style and independent upstarts.

And if you’ve been paying attention to the business news and earnings reports of those big labels and retailers you know that the climate can be described as nervous at best. The PR departments might be exuding optimistic messages in an attempt to fake it til they make it, but the reality itself is actually pretty grim.

Now this is where I venture into my Nouriel Roubini style Dr. Doomsday bit, but stay with me if you would because I promise to end on an optimistic note.

Although there’s lots of interest and excitement about fashion in Austin, the level of production and distribution infrastructure designers need to have a viable professional industry does not currently exist here (yet). But I will argue that this might actually be a good thing because the fashion industry proper like we see in New York and LA today is currently in a lot of trouble.

After the economic meltdown in the Fall of ’08, what do you think was the first thing people stopped buying? You guessed it, new clothes and shoes, especially the frivolous and expensive designer kind. I know there’s a lot of economists out there now talking about green shoots and the road to recovery, but my crystal ball tells me that for the immediate future our economy is in for another big hit at worst, and an anemic slump of unemployment at best.

Last year during New York fashion week I found one fashion writer brave enough to say what nobody else would: that at the shows themselves all too many industry veterans were busy working the room looking for gigs. Trouble is, most of their connections were in the same boat.

And more and more the established design houses are eliminating entry level positions and relying on and unlimited supply of fresh fashion school graduates for unpaid internships.

If you are hoping to make it big in the fashion industry as it exists in America today, I’d say good luck and I sure hope you have genius talent, incredible stamina, golden connections and a wealthy patron.

Now for the good news.

The best news I have is for the amateur do-it-yourselfers. The Blue Hangar still has mountains of discarded potential raw materials for $1.25 a piece, old school heavy duty sewing machines can be found used for under $50, (because really, the vast majority of home sewing machines built after 1975 are junk) and classes, books and websites to teach you to sew are within reach.

When you look back at the history of fashion and the changes in the dominant themes, norms and silhouettes, the most dramatic shifts always come in times of economic and social unrest. Now is the time to push it to the walls, and then push it some more. Enjoy the luxury of taking hours and hours, even days and weeks to painstakingly explore and experiment with techniques that may end up producing only one garment. And once you figure that out to the point where it’s efficient….move on to the next thing that catches your fancy.

I also find the social scene in Austin to be more fun and forgiving and far less judgmental and snobbish than cities where the stakes seem to be higher, like New York or San Francisco. The deliberately casual culture promoted by our own Chamber of Commerce means that one tends to find a broader range of social groups and types within the same venue.

At events like the Treasure City Thrift Fashion show everyone is applauded simply for giving it a shot. So go ahead, take a risk. If people think what you’re wearing is amazing, they’ll come up and tell you themselves. And if they think it’s just awful… well at least you’re keeping it weird!

So let’s say you’ve come up with a fun and unique twist on a garment or accessory, you’ve received lots of positive feedback, you’ve made more than you can wear and give away to friends and now you’re ready to try making a little bit of cash on the side to support your habit. The good news is that today there are stores like Parts and Labour and Moxie and the Compound that want to consign your work and have storefronts with systems and clientele already in place.

And of course I’m sure all of you are familiar with Etsy - the online marketplace that’s gotten many a new designer started with a viable business. But you will soon find out that efficient productions systems are essential to maintaining a profitable business of any size. The first hat is fun to make. And the third might be, too. But the thirtieth? Or the three hundredth? Streamlining is essential to preventing burnout.

The other thing essential to getting people to cross the line and fork over their hard earned dollars for your work - instead of just telling you how awesome they think it is - is that it has to be irresistible. And not just to one person, but to lots of them. Your look has to resonate with the tastes and subconscious desires of at least a niche demographic group.

And it must be well made. Period. Or people will pick it up and put it back or pass over the photo or send it back in the mail. Become skilled in your craft! If you’re making garments, learn to sew! I mean really learn to sew.

And what would I say to those of you who will settle for nothing less than making a living as a full time designer? For those of you determined to give it a shot, nothing I can say will talk you out of it because nothing anyone told me was able to talk me out of it. And boy did I show them! But I do believe that at least for me the naivete and boundless energy of being a twentysomething was essential.

Because you are the ones who are going to have to create your own jobs. To be visionary and creative enough to imagine not only new things to wear, but new models of doing business when the old ones are failing. Right now it’s extremely difficult to compete with the fast fashion monster machine churning out mountains of junky clothes at Forever 21 with exploited labor in third world countries. But do realize that this machine is dependent on key factors like the strength of the dollar, the stability of these other countries, and the low cost of international shipping. All of these factors can - and probably will - change into a whole new context in the coming decade.

In my blog I’m continually finding and posting articles about how luxury is being redefined for the 21st century and the focus is away from logos and bling (that’s so 2007) and towards ‘stealth wealth’ and the unique, one of a kind, handmade item that who’s craftsmanship is evident within the piece itself.

So for starters, learn to manage your money and your business. I know, it’s not the fun part. And if your mind is just too creatively oriented to do that well, you must partner up with someone you can trust to help you do it right. Pay your taxes, people.

Second, understand that at least half - if not more - of your time and energy will be spent hustling to get your product in front of your target audience. The marketplace is glutted with stuff, how is anyone going to find your signal amidst all the noise?

Third, go out and get a copy of Kathleen Fasenella’s “The Entrepreneur’s Guide to Sewn Product Manufacturing.” And read her companion blog - Fashion Incubator. Even if you’re a jeweler, she gives you the straight talk about how to get a product manufactured and marketed.

Whatever way you decide to approach making, finding, assembling, deconstructing and reconstructing clothing and accessories, please keep doing it! Give us something to talk about. Give the trend forecasters something to cool hunt and trickle up so it can trickle back down.

What will the fashion scene in Austin look like a decade from now? I’m waiting for you to show me.

Christina Binkley writes for the Wall Street Journal:

Towering brands like Gucci and Louis Vuitton may dominate ad pages and storefronts, but small designers are gaining a bigger foothold in fashion.

What Sundance did for indie film—showcasing it for a bigger audience—Web sites like Etsy are doing for the little guys of design.

from Smashingdarling.com

She explains how technology is helping the little guy (gal) rise at the same time the giants slide:

At the same time, consumers are increasingly hungry for independent designs. In part, brand fatigue is to blame. Big fashion labels sell the same products the world over, diminishing their logos’ cachet.

Ah yes, brand fatigue. The corporate conglomerates bought out something with actual heritage and promptly proceeded to kill the goose that laid the golden egg.

Their designers work on collections a year or more in advance of the clothes’ appearance in stores and rarely—if ever—meet the people who eventually buy them. Moreover, many consumers lost faith in luxury brands after watching prices soar during the boom, then plummet during the crash in the fall of 2008. The slashed sales prices raised questions about the true value of branded goods.

Ah yes, that pesky 08 crash that caught high end retailers with their designer pants down. Kind of hard to regain that snooty image after that season of bargain bin desperation.

Indie designers offer pieces that not everyone has, allowing consumers to create their own style. I’ve noticed that the clothes and jewelry of mine that garner the most compliments are those that come from indie designers. They’re not the same old trendy looks.

’same old trendy looks?’ Talk about inverting status.

Plus it doesn’t hurt your reputation for shopping savvy to admit that you bought something from a young, up-and-coming designer. These days, the “buy local” movement has whetted shoppers’ appetite for a greater sense of connection with their goods’ creators.

Now, even the huge brands are striving to establish authenticity—sometimes trying a bit too hard. British authorities recently banned Louis Vuitton ads that showed an artisan laboring on a bag, saying the ads suggested, falsely, that its bags are handmade.

And how many more potential LV customers saw the blogosphere light up with that juicy story rather than the bullshit ad they wanted them to see? How many of those customers are instead connecting with the actual artisan of the ’statement jewelry’ they’re investing in?

Trish Ginter, co-founder of SmashingDarling, which sells products from nearly 700 indie designers, identifies the site’s typical shopper as “a very professional woman,” she says. “They’re purchasing things that set them apart.”

Alexander McQueen from Kinho.com

The fashion world has always been one of knock offs and derivatives, today they just happen at an accelerated pace. But in the Post Industrial Revolution world of designers as artists, there have always been a handful that serve as the true channels of zeitgeist that pretty much everyone else riffs off of. Alexander McQueen was such a genius, and the fashion world is painfully aware of the empty hole left by his suicide.

But it’s Stephano Tonchi, editor of T, the New York Times Style magazine, that had the courage to pierce through the veils of insular industry hype and call out the fashion system itself, the system that has been overtaken by corporate conglomerates that are now the only option for high end but envelope pushing designers to finance their endeavors by turning themselves into a brand and squeezing out ever increasing amounts of product.

The following was taken from New York Magazine’s blog, The Cut:

“I think it is just the tip of the iceberg…We all know that this is a very critical moment in fashion, and that basically he is the first victim of what is a conflict between creativity and business. Today to be a fashion designer, you have to be a superman or superwoman. You have to have nerves of steel. You have to be so strong. And if you are a little bit weak, if you have psychological problems or weakness, you end up like him.” When McQueen began in fashion, designers worked on two or three collections a year, said Tonchi. “Now you have to be a business manager, a marketer. It’s, what? Eight, ten, fifteen collections a year. Men’s, women’s, couture, diffusion. Then they want accessories. Then they want watches. Then they want jewelry. It’s a machine, and I think that killed him.”

Tonchi also comments on McQueen’s move from working on his own to Givenchy (owned by the LVMH conglomerate) and then to the Gucci Group:

“He is really someone who has been chewed by the system,” said Tonchi. “I think all these different bosses are part of the pressure that we are putting on our designers. And also the pressure on creators of topping what they have done before. But not once a year: Every three months, every six months you have to be better than what you have been. You always must feel like you’re running behind.”

Fashion’s transformation into a big business, Tonchi said, reminds him of the end of the Hollywood studio system in the forties and fifties. “Do you remember how many people were getting killed by the job?” he asked. “The Marilyn Monroes, the James Deans. It was the same kind of self-destruction complex that brings you to kill yourself or do something so stupid as suicide.”

Anger at suicide is a common reaction, but Tonchi said he was coming more from a place of concern about what the industry is doing to the people who work in it. “We cannot look at the poor Alexander McQueen, abused child or abuser of substance,” he said. “I think you have to put it in a larger context in terms of the fashion system. He’s just one of the little cogs that got squeezed.”

the Ports 1961 seating chart from Vanity Fair article

Ever wondered how design houses decide who sits where at the high profile fashion shows? Vanity Fair takes us behind the scenes to the agencies that handle these complicated logistics:

“As a general rule, the hierarchy of where editors sit specifically within each section comes down to two factors: how supportive that person has been to the brand—meaning just how often he or she includes Ports 1961 in a story—and the publication’s circulation. “The bigger the circulation, the better your seat,” Iacovelli says.

Objective reviews, for sure. *cough*

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.