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Davis Dykes
Adam Padgett
November 22, 2016
English 102 Research Paper
Whose style?: The Effect of Copyright Laws, or lack thereof, on the Fashion Industry
In the 1980s, Don and Jin Chang, a South Korean immigrant couple opened their first clothing
store in downtown Los Angeles. A true american dream, they began by selling designs catering to the LA
Korean-American community, making a large profit that made it possible to expand their company by one
store every six months. By the 90s, their stores had become a mall staple in parts of the United States.
(Ferla) Today, Business Insider reports the company has garnered up to 700 stores nationwide and an
annual revenue of $4.4 billion, but they no longer produce flashy K-Pop trends. Rather, they focus on
producing trendy clothing, at affordable prices. The Changs are not designers, and their corporation,
Forever 21, is not a fashion house, but has somehow risen to the forefront of the Fashion Industry.
The Changs are not alone in profiting off of this fast fashion model. Stores across the globe,
such as Zara and H&M, have become some of the biggest wholesalers of clothing and accessories in the
world. Their clientele, who are mostly young, pop cultured millennials, use these stores to acquire some
of the industries hottest trends and styles at minimal costs. This model sounds like an amazing
achievement for giving the general public a chance to be en vogue since they can now own fashion that
for generations were limited to the more elite. If a person cannot afford the new $3,000 handbag Kylie
Jenner was carrying, they could probably pick up one just like it at one of these stores, but at what point is
the resemblance of these high-end and fast fashion products a bit too uncanny?
In the western world, the idea of intellectual property has become an increasingly more pertinent
issue with the rise of technology. The music, film, and literary industries have been some of the most
vocal and regulated factions in the world, with stringent laws protecting the rights of people to profit off
of their own ideas. However, the Fashion Industry has not been so fortunate. In the United States, there
has yet to be any legislation enacted that protects the designs of fashion designers beyond that of logos
and trademarks. Giving stores such as Forever 21 free reign over profiting off the work of real designers.
Not only are these stores profiting, but also the black market through selling counterfeit goods.

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When looking at the state of copyright law in the United States and the importance they play in
the other art forms, we can see that many steps have been taken to protect the rights of these artists. Why
then has fashion, which many see as an art form, been neglected? Although too much heavy handedness
in piracy protection could be a bit stifling in an industry that relies on interplay, there should be better
vigilance through copyright protection to give designers credit and help protect from money being
directed into unsavory places such as the black market.
The first United States copyright laws were enacted in 1790 and included protection for mainly
literary works, charts, and maps (Roth). Music compositions were added in 1830, photographs in 1860,
and works of art including paintings and sculpture in 1871 (Tu). The twentieth century brought the
protection of motion pictures in 1912 and architecture in 1990 (Roth). The last major copyright overhaul
took place with the 1976 Copyright Act, but still fashion was overlooked in this bill as well, only
speaking of such works in regard to art with utilitarian aspects. Since fashion is a useful article, it is
exempt from the copyright actions because of its use to cover the body (Roth).
One of the contingents of court discussion in regards to intellectual property, is the interpretation
of fashion as pictorial, graphic, or sculptural (Roth). Ofcourse the use of pictures or graphics on
clothing is covered by copyright, but anything in the actual aesthetic design of the clothing is not.
Meaning tailored cuts, necklines, sleeve lengths, etc. are not covered. One could argue that clothing
design is a form of sculpture since it is a crafted three dimensional work, but its classification as a useful
article negates this.
It is difficult to give credit for intellectual property on a product that is utilitarian for consumers
that all have a basic shape, but there is a difference between warranted similarities and exact plagiarism.
To combat this, designers have relied on branding. Judith Roth mentions that trademark law helps to mark
a brand that can be used legally and exploited commercially to give credibility and familiarity with their
product. Along these lines are the laws of trade dress that protect an overarching visual aspects that may
have become synonymous with a brand, such as Tiffany & Cos use of tiffany blue boxes tied up with a
white bow or a red soled Christian Laboutin heel. Trade Dress is not a viable option for most cases
because it still does not protect newly crafted designs. Leaving new designers especially vulnerable, who

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cannot afford legal fees to sue companies as much as larger, more established ones. Also, a silhouette or
neckline cannot always become synonymous with one specific brand because of the nature of clothing
design.
The idea of Trade Dress sheds light on what drives fashion, designs and consumer impulse.
People tend to view the fashion world as a space for connoisseurs of the grandeur, but in reality we are all
purveyors of fashion. Societal trends are the driving force behind what is hot or not. Scott Hemphill
relates these changes in trend to the constant struggle over social class. This struggle has become even
more heightened from social media, where people can validate their social status in a highly public way.
One of the easiest ways to show your social echelon is by your clothing. Black clothing, a more subdued
personality, rhinestones, a passion for sass and flare. What we wear tells people who we are without
saying a word. This is where the fast fashion companies profit most. A need for society to show their style
in the best way possible, with the lowest price tag. Providing the amazing feeling of fashion, wealth, and
high society of the one percent to the masses.
When confronting people on why its bad that Forever 21 is ripping off a $400 and selling it for
$40, they often say, I dont see the problem. The designers are over charging for their goods. Although
it is wonderful that people now have more opportunity for self expression, are these designers truly
overpricing their work? There are
many aspects that go into creating a
fashion line. It usually will take a
designer 6 months to create a line
ranging from ten to thirty pieces,
with hours of research, crafting, and
sewing. Paying for the distribution,
advertising on glossy magazine ads,
and paying for high-end retail real
estate are just a few major
expenditures for these designers. (Tu)

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Another issue is production cost. Most of these high-end brands are produced in their respective
countries. Meaning that most of these companies must pay the higher minimum wage and corporate taxes
in the western countries, such as France, the UK, or even the US. In the chart above, we can see the
difference in minimum wage and taxes of these developed countries, versus these lower producing ones.
While designers are taking weeks in developed countries, most companies like Forever 21 produce
facsimiles of designers work in 6 weeks or less and do most of their producing in countries with low
minimum wage and corporate tax.
The lack of copyright laws does not end with corporate appropriation. The counterfeit market has
committed an even greater infraction by creating exact replicas of pieces and passing them off as genuine
goods, not even attempting to bring the guise of reverent emulation. Counterfeits not only hurt the brand
which they are imitating, but also hurt the countries where the transaction is made through loss of taxes
implemented. This has lead multiple countries, including the United States, to place counterfeiting
industries as one of the highest on their watch list (Engizek). One of the most disturbing parts is that all of
these counterfeiting operations contribute to the black market and can have a monetary trickle down

Total Counterfeit Goods Seized In


US

Handbags/Wallets
Labels/Tags
Computers/Accessories
ApparelAccessories
Watches/Jewelry

Optical Media
Footwear
Pharmacudicals
Electronics/Parts

effect into some bad business that the customer may be


completely unaware of when making a purchase.
The Organization for Economic Co-operation
and Development says counterfeit sales have created a
$250 billion global industry. The chart on the left

29%
40%

represents the percentages of differing counterfeit


goods seized by the US government in 2013. As we
can see, handbags and wallets make up for close to

8%
7%

2%
2%
5%3%3%

half of these sales, while watches and jewelry are not


far behind at 29% (Frohlich). These items make up
such a large portion because of the relatively high

price tags and image of luxury associated with them.


This data represents the amount of goods relative to the amount that was seized during
importation by border officials. The true scope of the economic effect of these sales cannot be known

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because of their undocumented nature. Counterfeit sales are now estimated to cost governments 5% in
taxes every year (OCED). Not only is it a financial burden to fashion designers but also to the government
and tax payers.
The OCED also reports that along with the growth in counterfeit sales, there is a growth of
organized crime associated with it in many developed nations including France and Canada. Black
Market activity is often associated with organized or unorganized crimes. Since there is no legal
involvement, people have no protection for the activities of these industries. Many people are forced
labor, hustled, or even murdered for their involvement in these dealings.
The government has trademark laws that prevent exact counterfeits but there cannot be a
complete halt on all products entering the country. It takes the involvement of all countries involved to
help stop counterfeiting. Most of these countries that produce these products do not have piracy protection
legislation. If the United States were to take an even stronger stance by passing copyright laws, other
countries could be influenced to follow suit.
In 2008, the US government put forth the Design Piracy Prohibition Act, which was abruptly
discarded and now sits in legislative limbo. The act would have allotted intellectual property rights for
designers but in recent years has become stagnant due to lack of support in Washington because of other
pressing issues after the 2008 financial crisis (Roth). This legislation lead many people to discuss the state
of fashion and intellectual property. One of the most influential writings is The Piracy Paradox which
questions the validity of these complaints about piracy from designers. Claiming that even without
copyright protection, the industry is the most profitable of all artistic mediums that are copyright
protected and that the lack of protection is what drives its ever changing trends and innovation.
The authors make an interesting point. Why are the music and literary industries failing, while the
fashion industry is thriving with barely any emphasis on piracy? The issue with this question has to do
with the nature of the product. The internet has overhauled our entire system of media consumption and
thus these two mediums have suffered. Apparel still has the protection of being a tangible object, so it
cannot be transferred as easily as the other two. The claim that lack of piracy protection has somehow
incited innovation in fashion has been disproven by the fact that most of the worlds major designers live

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in Europe, where there is higher protection against piracy. Still, these fashion companies are able to
initiate fashion trends.
Fashion designers play an intricate role as artists in society. They do not create art to hang on a
museum wall or sit on a bookshelf, but rather to give unspoken voice to people through wearable self
expression. There most certainly must be the ability for designers to be inspired by the work of their
peers, but there also must be a way for designers to earn the recognition they deserve for their work and
reap the benefits as with other artists in fields that acquire copyright protection. The United States is a
leader in the world as one of the only remaining superpowers. We have a responsibility to our citizens to
protect and support their life, liberty, and pursuit of happiness. Without giving fashion designers
intellectual protection, we have let others profit off of their work and inadvertently perpetuated a system
that hurts not only these designers, but the government and tax payers. Hopefully soon, there will be a
change in the ideology of copyright law that will come to include the art of fashion.

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Work Cited

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Avery, Peter. The Economic Impact of Counterfeiting and Piracy. Paris, France: OECD, 2008. Print.

!Boesler, Matthew. "Here's How America's Minimum Wage Stacks Up Against Countries Like India,
Russia, Greece, And France." Business Insider. Business Insider, Inc, 19 Aug. 2013. Web. 16 Nov. 2016.
!ENGZEK, NL, and AHMET EKERKAYA. "Is The Price Only Motivation Source To Purchase

Counterfeit Luxury Products?." Journal Of Academic Research In Economics 7.1 (2015): 89-118.
Academic Search Complete. Web. 14 Nov. 2016.

!Frohlich, Alex Thomas C., Er E.M. Hess, and Vince Calio 24/7 Wall St. "9 Most Counterfeited Products
in the USA." USA Today. Gannett, 29 Mar. 2014. Web. 20 Nov. 2016.
!Hemphill, CS, & Suk, J 2009, 'THE LAW, CULTURE, AND ECONOMICS OF FASHION', Stanford
Law Review, vol. 61, no. 5, pp. 1147-1199.
!"Hey, Mister
Tax Man!" Forbes. Forbes Magazine, n.d. Web. 16 Nov. 2016.
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Raustiala, Ka, and Christopher Sprigman. "The Piracy Paradox: Innovation And Intellectual Property In
Fashion Design." Virginia Law Review 92.8 (2006): 1687-1777. Academic Search Complete.
Web. 29 Sept. 2016.

Roth, Judith S., and David Jacoby. "Fashion, Copyright, And The Proposed Design Piracy Prohibition
Act." IP Litigator 15.6 (2009): 1-8. Academic Search Complete. Web. 29 Sept. 2016.

Tan, Irene. "Knock It Off, Forever 21! The Fashion Industry's Battle Against Design Piracy." Journal Of
Law & Policy 18.2 (2010): 893-924. Academic Search Complete. Web. 29 Sept. 2016.

!Tu, Kevin V. "Counterfeit Fashion: The Interplay Between Copyright And Trademark Law In Original

Fashion Designs And Designer Knockoffs." Texas Intellectual Property Law Journal 18.2 (2010):
419-449. Academic Search Complete. Web. 14 Nov. 2016.