Fashion fakes: copyright, trademark and creativity

Please note that this post is from 2010. Evaluate with care and in light of later events.

There is no protection from copying designs in the fashion industry, so how are police able to crackdown on knock-offs?

Copyright originally only applied to printed works, and though it has been extended to sound recordings, movies, and software, its protections have never yet covered fashion design. Copyright in the American tradition provides an incentive to encourage the creation of new works, with the goal of benefitting everyone by increasing the amount of creative works. Despite this lack of statutory incentive, the fashion industry has never lacked for creativity–but nonetheless, some still think fashion needs protection in order to be innovative:

On Aug. 5, Sen. Charles E. Schumer (D-N.Y.) introduced S.3728: The Innovative Design Protection and Piracy Prevention Act. He’s got 10 co-sponsors — including three Republicans — and a big idea: to extend copyright protections to the fashion industry, where none currently exist. That’s right: none. I — well, not I, but someone who can sew — can copy Vera Wang’s (extremely expensive) dress and sell it to you right now (for much less), and Wang can’t do a thing about it.

via In copycats vs. copyright, the knock-off wins from the Washington Post.

So if Sen. Schumer has to introduce a law to protect the fashion industry from fakes, how come knock-offs are already seized by police? The answer is that even though copyright doesn’t protect fashion, trademark does. Copyright gives a medium-term monopoly to creators, while provides much more limited protection–but lasts as long as the brand protects and uses its mark.

In short, it’s perfectly OK to copy a high-end purse, as long as you don’t copy the logo and brand of the designer. Copy all you want, but don’t pretend your copy is the real thing. The point of this–as with trademark generally–is to avoid confusing or misleading customers. From the business side, the point is to keep poor imitations from cheapening the investment in the brand.

Of course, it’s not always clear what’s merely a copy vs. what’s actually counterfeit, but that’s why we have lawyers!

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