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

Halston 08 from Shop Diary

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

from 'Halston' by Steven Bluttal, ed.

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

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

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

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

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