Fashion Law : Fashion Lawyer & Attorney : Fox Rothschild Law Firm : Licensing, Intellectual Property

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Since the dawn of fashion, there have been those that have made a living from creating goods that look like, pay homage to, or are inspired by the original.  In today's WSJ, Christina Binkley discuss the speed at which copies or "knock-offs" arrive in the marketplace.  Binkley's explanation of why, is spot-on:

The fashion world is ravenous for new jewelry, accessories and clothes to fill the shelves of retailers and Web sites, many of which seek to offer fresh inventory as often as every two weeks. Often, existing designs become the inspiration for new, mass-produced pieces.

As I discussed previously, that is exactly how trends start.  In her article, Binkley uses the "Shashi bracelet" by Yuvi Alpert and Danna Kobo as an example of a trend:

• The bracelet was introduced at retailers Henri Bendel and Intermix in May 2009;
• Influential stars including Ms. Lohan and Katy Perry were soon wearing them;
• By December 2009, Mr. Alpert and Ms. Kobo had sold 10,000 of the bracelets;
• By February 2010, the bracelets' retailers began complaining about less expensive versions; and
• Now, at the end of April 2010, orders are either no longer being written or are being canceled because cheaper versions are available.

I don't know about you, but any item that sells for over a year is pretty remarkable in an industry that requires fresh product every 6 weeks.  As Mr. Alpert and Ms. Kobo stated:

The Shashi helped fund the young designers' development of their more expensive Ruby Kobo jewelry line, for which they won a 2010 Council of Fashion Designers of America "Incubator" award.

That's pretty impressive. 

Despite this success, critics, like Professor Susan Scafidi of Counterfeit Chic, still implore the need for more legal protection for small designers because for "an emerging designer, cheap knockoffs can be a knockout blow.  Thus, "young and independent designers are exactly the ones who need a bit of legal protection."

I, on the other hand, think the proposed Design Piracy Prohibition Act (DPPA) or its spawn as proposed by Professor Jeannie Suk, ignore the realities of the business of fashion including the financial ramifications of such a law; would make judges the arbitrator of fashion; and as Binkley accurately states, "would benefit only big brands that have the resources to apply for and protect their copyrights, trademarks and patents."

I stand firm in my position:

As a practicing fashion lawyer, litigator, former COO of apparel companies and the fourth generation of my family to work in fashion, law professors and politicians with no hands-on fashion industry experience should not be allowed to "fix" something that they have no practical knowledge of. 

The solution?  Binkley provides us with one:  Designers need to do what they do best - provide a steady stream of "new" material.  Then, they will get known for being innovators and the leaders in their market.  (Binkley's sentiment is echoed by Janine Blain, Vice President, The Doneger Group here [video])

I will end with two quotes:

When you are talking about fashion, lose the word original. Ask the small designers where they got their inspiration. Ha! They pull it from others." 

…Marc Jacobs; and from Project Runway's Tim Gunn:

"fashion designers, it’s not as though you’re creating fire or inventing the wheel. These things already exist.”
 

photo credit: mijjo