Can I get this at H&M?
Julian Sanchez has a great article up in The American about fashion designers pushing for laws to protect their designs from copy-cat mass retailers like Zara, H&M, and Forever 21. It’s an interesting issue — on one hand, I don’t buy the argument that fashion is purely functional (as opposed to aesthetic), I do think that clothing design can be an art, and I do think that artistic creations deserve some level of protection. On the other hand, as Julian points out, fashion design is an industry of inspiration as much as innovation — designs are recycled, homages are paid, influences are recognized. With so much creative back and forth, how does one decide what is “closely and substantially similar in overall visual appearance to a protected design”?
Some things, like logos, are obvious enough. But who gets to claim property over the bolero jacket or Burberry-esqe plaid on khaki or the croissant shape of a Spy bag? As Julian says, direct counterfeits are already outlawed, which makes the fashion issue different than the piracy issue — pirated software, movies or music passes itself off as the real thing. Knock-offs don’t; they just kind of resemble it.
Fashion designers are making a big mistake by going after knock-off lines. Stores like Zara and H&M can be fashion gateway drugs, allowing younger men and and women to experiment with clothing in an affordable way, and essentially getting them hooked on following trends and wanting seasonal items. Many of those men and women will continue shopping at the knock-off stores forever, but a handful of them will move up into an economic class where they can afford Zac Posen and Marc Jacobs — and they’ll already be bitten by the fashion bug. It’s a ready-made consumer base. And according to Julian’s research, the knock-off boom hasn’t hurt couture houses or high fashion at all.
Finally, it’s clear that this is less about intellectual property and more about maintaining traditional class boundaries. Clothing can be a decent indicator of economic class and social status. If you let a middle-income mom from the suburbs access clothes that look a whole lot like the pieces sitting in the closet of a well-heeled urban 20-something, class lines blur and the ability of high fashion to serve as an indicator of wealth subsides. Julian writes:
An extreme example of this can be found in the case of Burberry, which saw its British sales decline when counterfeits of the clothier’s distinctive plaid became the unofficial uniform of England’s gauche “chav” culture. But if this is the concern, fashion copyrights begin to look less like conventional IP and more like a modern analogue of the Elizabethan sumptuary laws, which kept class boundaries distinct by specifying who was entitled to wear which fabrics: purple silk for the royal family; gold cloth for ranks above viscount; and velvet for the sons of barons.
I think that’s pretty right on.
I’m also totally self-interested here, since my Zara addiction is out of control.