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Should you be able to copyright a shirt?


On Aug. 5, Sen. Chuck 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.

We’re used to the logic of copyright. Movies, music and pharmaceuticals all use some form of patent or copyright protection. The idea is simple: If people can’t profit from innovation, they won’t innovate. So to encourage the development of stuff we want, we give the innovators something very valuable — exclusive access to the profit from their innovations. We’ve so bought into the logic that we allow companies to patent human genes.

And companies love copyright. They love it so much they persuaded Congress to pass the Sonny Bono Act, which extended individual copyright protections to the life of the author, plus another 70 years; and corporate copyrights to 120 years from creation, or 95 years from publication, whichever is earlier. That’s an absurdly long time, and it belies the original point of patents: Does anyone seriously believe that a 40-year-old with a money-making idea is going to hold back because someone can mimic it 20 years after he dies?

At a certain point, copyrights stop protecting innovation and begin protecting profits. They scare off future inventors who want to take a 60-year-old idea and use it as the foundation to build something new and interesting. That’s the difficulty of copyrights, patents and other forms of intellectual protection. Too little, and the first innovation won’t happen. Too much, and the second innovation — the one relying on the first — will be stymied.

Which is why we have to be careful when one industry or another demands more copyright protection for itself. “Intellectual property is legalized monopoly,” says James Boyle, a professor at Duke Law School. “And like any monopoly, its tendency is to raise prices and diminish availability. We should have a high burden of proof for whether it’s necessary."

Drug development probably meets the burden of proof. It costs hundreds of millions of dollars to bring a drug to market. If Pfizer could just copy the drugs Novartis develops, Novartis wouldn’t have much reason to develop drugs.

Recipes don’t. You can’t patent dessert. Just ask Jean-Georges Vongerichten. Years ago, he created a chocolate cake with a molten core of liquid chocolate. The recipe became a sensation. Which meant it appeared on menus all across the country, with no credit to JGV. That’s a bummer for its creator, but a boon to all of us who don’t live in New York. We get to eat it anyway. And yet innovation continues apace in the food world. JGV is still a rich man. We can have our cake and eat it, too. (Sorry, sorry.)

So which one is fashion? Well, look around. Sure seems as though there are a lot of clothing options, and at all manner of price points. The big fashion houses are raking in billions of dollars in profits. What’s the problem we’re trying to solve?

Read on ...

(Photo credit: By Mahesh Kumar A./Associated Press

By Ezra Klein  |  August 20, 2010; 3:30 PM ET
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Next: Trademarks in fashion


"So to encourage the development of stuff we want..."

There's your answer. There's no urgent social need for innovations in fashion. Vera Wang's clothes serve the same social purpose as anyone else's clothes - to cover (or provocativly uncover) someone's anatomy. As long as high end designers are protected from rip offs by anti counterfit laws, there is no reason for copyright. Vera Wang and the knock off artists are different markets - I doubt Chelsea Clinton would have worn a knock off gown even if it was identical to the one she wore.

Which raises another question - what on earth would be the standard for awarding copyright protection? Ms. Clinton's dress was lovely and admitedly you couldn't see all the detail in the pictures, but on the basis of overall impressions, I don't think it look all that different from a lot of the off-the-rack gowns my daughter tried on for her wedding. As a ex-bureaucrat, I always look at proposed new legislation through the prism of 'how would it be implemented?' and to me, this would seem to be an implementation nightmare, probably in fact discouraging more creativity than it encouraged.

Posted by: guesswhosue | August 20, 2010 3:46 PM | Report abuse

Below is a link to a very interesting TED talk on how the Fashion industry is better without copyright.

Posted by: rickmandler | August 20, 2010 3:52 PM | Report abuse

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.


so what's the endgame to this? The rich (ie Vera Wang's of the world get rich) and the poor schmo who has little to no creativity gets nowhere. Is that really the liberal thing to do?

Posted by: visionbrkr | August 20, 2010 4:02 PM | Report abuse

And no matter how narrowly tailored this law is, you're going to get tons of cased bogged down by whether something is too similar to the original or not, with judges doing their best until a higher court comes up with some arbitrary rule for determining whether this dress really is like that dress. Probably the cases will have to rely on some kind of dress expert testimony, which benefits big designers over independent designers.

The best thing about the article, other than being interesting and generally well written, is the point that we pass laws for a reason. Whether we're regulating banks, setting subsidy levels, enforcing copyrights, or whatever, it's all in the service of making the lives of Americans better. Increasing GDP and profits for big companies are only a good thing insofar as we're all better off because of it. To the extent that government action/regulation ends up making only some small number of people much much better off we should really rethink that regulation/action.

Posted by: MosBen | August 20, 2010 4:03 PM | Report abuse

This is what Chuck Schumer is spending time on? This would be a waste of time even without unemployment, immigration, health care, two wars, etc. I wonder if the worst consequence of the filibuster is that it drives senators to make bold stands on behalf of meaningless issues because they can't pass anything meaningful.

Posted by: andrewbaron78 | August 20, 2010 4:11 PM | Report abuse

andrewbaron78 writes: "This is what Chuck Schumer is spending time on? This would be a waste of time even without unemployment, immigration, health care, two wars, etc. I wonder if the worst consequence of the filibuster is that it drives senators to make bold stands on behalf of meaningless issues because they can't pass anything meaningful."

To this, I add only "Zing!"

Posted by: rmgregory | August 20, 2010 4:14 PM | Report abuse

You should have contacted an IP attorney before you published this article.

First, who told you you can't patent a recipe? Of course you can. It could be written as a composition of matter, or a method of making a food item. No problems there at all.

Second, design protection legislation has long been a goal in a number of industries. In fact, the Copyright Act of 1976 very nearly included a Title II (it was even passed by the Senate) with protection for designs. Bills were introduced just about every session after that until the early 1990s trying to get design protection into the copyright act, but it never passed.

The only protections for designs that have been enacted are some of the most clear examples of how Congress is for sale that I've ever seen. You can only get design protection for the design of a boat hull, for architectural works, and for computer "mask works" (used in photolithography for manufacturing semiconductors).

Posted by: someone-else | August 20, 2010 4:23 PM | Report abuse

Copyright is never meant to protect the consumer, so I don't understand that argument at all. It's simply the wrong lens through which to view copyright law. Copyright protects the producer's livelihood. (Whence the ancillary fair use laws: you can use copyrighted material for certain purposes, like educational ones, if they don't interfere with the creator/producer's livelihood.) WIth the exception of lifesaving drugs (in which case consumers do need access), no one who can't afford it truly needs to wear a Vera Wang dress.

That said, Vera Wang can survive because no one can mistake a couture garment made of expensive fabrics and expert construction with the fifty-dollar knockoff. It's not really hurting her business. Fake Louis Vuitton bags? I'm not so sure. It certainly won't prevent the super-rich from paying thousands for the original, but it does kind of devalue the chic-factor of the product and may have an eventual effect on business.

Still, the American apparel industry was built on the idea of designer knockoffs (remember Orbach's?). And, oh dear, America is not the hub of the fashion universe: Milan, Antwerp, Paris, maybe. The U.S.: a few new bright spots, but not a global phenomenon by any means.

In the end, we're talking about intellectual property. I'm pretty dogged about protecting that (and I'm sure Ezra would be if someone decided to come out with a volume of his best essays, copied word for word--with their name on it instead of his). Food and fashion are not so clear-cut. And I think a fashion copyright law would be very hard to enforce and/or adjudicate.

Posted by: JJenkins2 | August 20, 2010 4:31 PM | Report abuse

In the TED talk Ezra posted below, the example is of some people rushing in to patent simple processes, like collars or a particular way of sewing on a sleeve, and then demanding royalties from everyone else, stymmieing further developments. This has actually happened in some other fields, as more and more "processes" become subject to patent protection. I can understand copyright for works of art and patents for the kinds of things that used to be patented, but it has gone way too far and is now just a form of monopoly protection.

Posted by: Mimikatz | August 20, 2010 5:01 PM | Report abuse

If the fashion industry, and a designer like Vera Wang, want to move to an 'artist' model in which Ms. Wang herself is sewing each one of those $1,000 dresses, then I might be for some sort of protections. Otherwise, lets face it, the designer came up with a reputation and a pattern, the rest is sweatshop labor and distribution, not their own.

I would also argue the intensely legal nature of copyright and patent law is not there to protect/profit the innovator... it's for the sole PROFIT of the corporate/legal structure that propogates the copyright/patent legal system. There could be no Edison in this day and age, because a corporation with a mildly related interest in his technological innovation would instantly bankrupt him by suing him to the stoneage, patenting the innovation themselves, and hording the profits and rights to the original innovation.

This isn't about innovation, it's about profits.

Posted by: Jaycal | August 20, 2010 5:06 PM | Report abuse

This is a stupid idea. This same conversation happens in the ceramics field. (I'm a potter.) Some potters have advocated for copyright to stop rip offs of handmade work by Chinese sweatshops who can copy a design and then mass produce.

People who value handmade pottery are not interested in Chinese knock-offs. People who want cheap dishes are not interested in the instrinic value of an individually crafted piece that bears the signs of the human hand.

Posted by: suekzoo1 | August 21, 2010 11:54 AM | Report abuse

"The idea is simple: If people can’t profit from innovation, they won’t innovate."

The idea may be simple but it's false. Doesn't the existence of the fashion industry prove that it's false? Has anyone noticed any lack of innovation in fashion? Is there any social need to extend government protection to fashion designs in order to encourage more fashion innovation? Isn't this simply an extension of federal power in favor of politically powerful businesses?

The whole point of this law is to shut down small businesses who produce knock-offs at a price ordinary people can afford. The effect will be less employment in the garment industry and the restriction of new and innovative design to wealthy consumers. Funny how Republicans are in favor of more government regulation of the fashion industry, isn't it?

Posted by: Bloix | August 22, 2010 10:31 PM | Report abuse

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