In defense of the sanctimonious women's studies set || First feminist blog on the internet

Thou Shalt Not Knock Off

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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.


26 thoughts on Thou Shalt Not Knock Off

  1. Hmmm…I’ve never even heard of Zara. Which tells you either 1) my socioeconomic class or 2) that I’m just out of it.

  2. I discovered Zara when I lived in Japan…love love love!

    I guess what I’m trying to say is…break down the class boundaries and let the fashion style borrowing continue!

  3. I don’t have much sympathy. I will give some leeway for “art” and “creativity” claims, but when it comes right down to it – they’re selling goods. In a capitalist environment. If you egregiously overvalue your product and haven’t ensured that are not the only company with the ability to create those goods, (i.e. you are the only purse-maker in the WHOLE WIDE WORLD), than competition is going to rear it’s ugly head and take you down a peg or two. Free market, baby!

    My middle-class mother would be driven to drink to learn that I paid more than $75 for a really nice handbag, or more than $150 for a really special pair of shoes or boots. In fact, if I ever told her I paid $500 for Manolo Blahniks, she may seriously consider disowning me – the idea that we pay so much for a pair of shoes in a world where that’s all some people make in a year (and might not even have shoes) is one of her hot-button issues.

  4. Ooooh, there’s a Zara down the street from my office. I’ve never checked it out but now I’m intrigued.

    I understand the desire to protect logos and stuff like that, but how would something like this even work? Patent the A-line? Kitten heels?

  5. Zara is kind of like a European Banana Republic, but way better. They sell knock-off clothes for pretty affordable prices, and their stores are less crazed than H&M. We just got one in New York a few years ago, so if people haven’t heard of it, it’s probably just because it’s not super common in the U.S. yet.

  6. Another blog I read, Techdirt, has repeatedly covered the issues of legal protection for intellectual property in regards to the fashion industry . It is their most often cited example of why less regulation of intellectual property will not be the death knell of creativity and innovation, because the fashion industry doesn’t have it, and creation and innovation are thriving there.

    The fashion industry is also an example where their copyrights (if granted) would almost always be prone to being overbroad, would stifle competition, and raises prices. It would encourage copyright hoarding and litigation over innovation and creativity. Because of the impact on competition in the fashion industry, consumers would have less selection to choose from, and would have to spend more on it. Even the industry itself would suffer because the resulting slower rate of innovation in their designs would mean consumers would spend money on the latest trends far less frequently because there will be hardly anything new in the latest trends.

  7. I will give some leeway for “art” and “creativity” claims, but when it comes right down to it – they’re selling goods.

    In my mind, they get LESS leeway because the fashion industry always likes to position itself as more art and less industry. You can’t copyright a brushstroke method, a poetic meter, or a metaphoric style, and if fashion is art, you shouldn’t be able to copyright the styles mentioned in the article.

  8. 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.

    That makes perfect sense to me. I don’t know jack about fashion, but once I had an interesting conversation with an editor from a fashion industry trade magazine. She told me that the only way you make money in the clothes business is by selling to the middle market, because there just aren’t enough people out there willing to pay $1,000 or whatever for a jacket. The function of Prada, Zara or whatever is to serve as bellwethers, setting the trends that the middle-market houses then pick up and run with.

  9. Mark your calendars: Shankar and I agree. Over-protecting IP actually stifles innovation as surely as under-protecting it, and art has never needed clear-the-competitors protection like trademarks do. When someone’s idea or innovation has the government to protect it from advancements and adjustments, nobody has an incentive to improve on it, so it sits there without competition until it becomes obsolete.

    Jill, I also think the class analysis is correct. Some companies want to be a class demarcation; they can position their brand that way and the label and logo get trademark protection to prevent knockoffs. But if they want to protect their entire style, the whole set of aesthetics that they sell under the label, well, there’s not real difference between that and sumptuary laws.

  10. 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:”

    Agree with this as I’ve seen it at work, especially at the wealthier private colleges and in the workplace. In fact, I’ve have been wondering how much the development and implementation of “professional” dress codes in the corporate workplace is tied into the use of clothing as not only as a marker of socio-economic status, but also the workplace’s socio-cultural norms. This reminds me of a posting on Pandagon where there was a discussion on how African-American women are harshly criticized in the workplace as “overly political” if they choose to wear their hair naturally instead of straightening it out to resemble White dominated fashion norms.

    I may be overly cynical about this, but I’ve always thought of the fashion industry along with the abetting msm as one of the many big consumerist rackets to regularly sucker us out of our cash just so we do not attract the harsh judgments from those who detest any signs of deviance from msm dictated social norms. What do you think?

  11. I don’t get no respect!

    Watch it there, Shankar; I think Rodney Dangerfield’s estate might be able to sue you for that. 😛

  12. If you expand this model to music, under the argument that high fashion is artistic expression, any band that apes the sound or style of another would be breaking the law. Should the “80’s sound “revival be banned?

    Besides, don’t many designers just copy the uber trendy street fashion anyways? I seriously doubt they just pull all their ideas out of thin air. I usually see the latest trends on the street of my hipster neighborhood a year or so before they are on the runway. Goodwill and other second hand stores should be suing the designers.

  13. I’ll agree that designers are being ridiculous and taking themselves a bit too seriously here. Besides, if you think about it, most designers steal their ideas from urban kids anyway. Think about things that have been huge trends over the past few years and they almost all originated with urban kids (particularly of color) in big cities like NYC.

  14. One thing that puts the nail in the coffin for their claim is that you can get any how-to-sew book or patterns from 10-15 years ago and recreate the same outfit. Who is to say that I am trying to copy a designer or came up with an idea from styles I like?

    And for those who want the designer clothes and have the patience to sew? How about Vogue patterns which is where many designers publish their patterns! It’s hard to claim copycat when they publish the pattern (and with a little looking, one can find the components of the pattern in a cheaper brand).

  15. Alright, I’ve ike Zara and H&M but I’m turning more and more into a plain Jane. Even now that I can afford Burberry, I’d rather protest their use of animal fur than shop with them. I simply can’t get into “high fashion.” I think most of it is ugly, and not just aesthetically.

    The way rich snobs look at your clothes and judge you makes me sick. And all the anti-style syles get co-opted by them, too. It makes me want to learn to sew and make my own clothes so they can just go fuck off when they’re trying to figure out what designer or size I’m wearing.

  16. I usually see the latest trends on the street of my hipster neighborhood a year or so before they are on the runway. Goodwill and other second hand stores should be suing the designers.

    Wow! Here I’ve been shopping at Goodwill for the last few years because it’s basically the only place I can afford enough work clothes to actually, y’know, not wear the same outfits every week — but now I’m wondering, does it mean I’m extra-super-cool cuz I shop where the cool kids shop?

  17. I’m definitely showing my history geekness here, but sumptuary laws were the first thing that popped into my head when I started reading about this ridiculous proposal. Are we seriously debating who can and can’t wear specific fabrics? That’s positively medieval.*

    *Alright, technically it’s positively renaissance, but that doesn’t have the same ring to it.

  18. I worked in the Senate this past summer and wrote a memo on the pending bill. It’s completely industry-driven and would benefit only the richest of all the designer brand-name companies.

    In particular, the bill is designed to overturn Wal-Mart Stores, Inc. v. Samara Bros. Inc., where staunch knock-off defender Justice Scalia authored the unanimous opinion of the Court defending our rights to knock-off fashions.

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