The rag trade’s fashionably late arrival to the copyright party.

For the past several years, as the music and movie industries have gradually consolidated ever more authoritarian control over their copyrights, the fashion industry has been held up as an implicit rebuke to their autocratic ways. Fashion, the story goes, is a similarly creative industry, yet it operates with essentially no prohibition against design copying. To many observers, this magical kingdom without laws does much more than simply survive without a blizzard of “cease and desist” letters; it actually seems to work rather well. The open and accepted practice of fashion designers “paying homage” to the designs of others isn’t seen as unpunished piracy, but rather as part of the normal creative flow upon which design itself thrives. And, although it is less exalted, the practice of mass retailers such as H&M and Zara selling knockoffs of high-style designs is seen as an accepted and important part of the fashion business.

This laissez-faire idyll may soon be a thing of the past, though. Lately there have been indications that the fashion industry wants to abandon its somewhat unique legal perch and dive into the same lawyer-filled waters in which the rest of the creative world swims.

The Council of Fashion Designers of America is meeting with members of Congress tomorrow to gather support for a bill to offer copyrightlike protection to clothing designs. While European Union law already contains similar provisions, the CFDA proposal would be a substantial change to the existing American framework. The proposed bill would, for the first time, prevent anyone from copying an original clothing design in the United States and give designers the exclusive right to make, import, distribute, and sell clothes based on their designs.

The gap the CFDA is trying to fill is there because existing copyright law protects only original or creative expressions. Generally speaking, this has precluded coverage for “useful articles,” which essentially means anything with a utilitarian purpose. Courts have traditionally insisted on seeing clothing as a “useful article” unprotected by copyright, at least in part out of fear that to do otherwise would be to create style “monopolies” that would chill creativity and increase prices.

Rather than try to tackle this “useful article” problem head-on, the CFDA bill piggybacks off an existing law that provides design protection only to—oddly enough—boat hulls. Congress enacted this boat-hull statute in 1998, in response to a Supreme Court holding that a Florida state statute protecting the design of boat hulls was unconstitutional because it interfered with federal regulation of intellectual property. Apparently feeling strongly about the protection of boat-hull design, Congress stepped in after the Supreme Court ruled and produced a federal statute on the subject.

Now, boat hulls, like clothing, have a pretty clear utilitarian purpose and therefore would not normally be copyrightable. The boat-hull statute sidesteps this problem by simply stating that, regardless of all that, the design of boat hulls will be protected from copying, and it sets forth a statutory framework—carefully limited to boat hulls—for such protection. This framework does not provide rights that are quite as extensive as those given to things like novels and screenplays (for instance, the duration of protection is shorter for boat hulls, and in the CFDA proposal for clothing it is shorter still—only three years), but it nonetheless sets out a workable prohibition against design copying. Because the boat-hull statute is broadly written and can provide design protection to just about any otherwise “useful article” with minimal changes, the fashion industry is simply trying to expand it to apply to clothing design as well.

This is not the fashion industry’s first try at protecting design. As long ago as 1932, the industry organized a cartel called the Fashion Originators’ Guild, whose explicit purpose was to curb design copying. The guild’s coercive mechanism was a “declaration of cooperation” that retailers and manufacturers were required to sign, affirming that they would handle only original creations. Members risked fines and other penalties if they didn’t comply. By all accounts the system worked well enough and indeed curbed design piracy, right up until the day in 1941 that the Supreme Court decided it violated the antitrust laws. That ruling sent the design world down the permissive, copy-mad path that it has followed more or less to this day.

To say that clothing design currently has no protection against copying, though, is not to say that designers have no intellectual-property rights at all. Anyone who has seen raids on Canal Street “Gocci” vendors knows that designers still pack some sort of legal punch. But these busts are for trademark violations, not copyright, and trademarks have nothing to do with design, per se. Trademarks are simply meant to identify a product’s origin. So if a garment looks, say, exactly like a current Gucci offering, and the label says “Gucci,” but the garment was not actually made by Gucci, the manufacturer most likely has a trademark problem. But—and this is what the CFDA is trying to change—under the present state of the law the manufacturer does not have a copyright problem. There is nothing wrong with copying (or “ripping off,” depending on one’s tastes) the precise design of a piece of clothing. Thus, you can have Marie Claire’s regular “Splurge vs. Steal” feature, which compares expensive garments of original design with vastly less expensive—and sometimes essentially identical—versions knocked off by different manufacturers. The coy implication of the feature’s title notwithstanding, this is all perfectly on the up-and-up.  

It is not hard to muster some sympathy for the changes the CFDA seeks. No longer would designers have to send models down the runway with their latest creations only to find that, through the wonders of digital cameras, the Internet, and mass-production facilities in faraway lands, knockoffs had arrived in discount stores seemingly before the model had finished her last sashay. It is also fair to ask, though, whether fashion’s current freewheeling system helps even those it sometimes hurts—that is, whether those designers who are occasionally copied are also themselves frequently copiers—and whether this open system ends up producing a more robust creative market than could exist in a regime with stringent design protection.

Given the unusual role played by status and exclusivity in fashion, this may actually be the case. Kal Raustiala, a law professor at UCLA, suggested in the New Republic Online that, because much of the appeal of high fashion for those who are able to wear it is the mere fact that others can’t, free copying may not be a bad thing for the industry. As Raustiala put it, “Once a style ends up on ordinary suburbanites getting on the 5:45 to Asbury Park, fashionistas want nothing to do with it. Indeed, they’ve already moved on—to the next look.” The fact that cut-rate manufacturers can freely copy designs, the argument goes, reduces the time it takes for those highbrow designs to show up on the 5:45, which in turn makes early adopters move on to the next new thing. And the quick repetition of the cycle benefits all in the business. 

It’s also fair to ask how well design protection can really work in the fashion industry. The CFDA says it wants to stop actual copying and not the borrowing of ideas that “are in the air,” but that can prove to be an elusive distinction. The language of the CFDA proposal follows the boat-hull statute and states rather broadly that an “infringing article” is an article that is based on a design that is protected by the statute. By way of trying to explain what that means, the statute says only that there is no infringement if the second design “is original and not substantially similar in appearance to a protected design.” When is a clothing design original? How many angels can dance on the head of Isaac Mizrahi’s pushpin? More to the point, how many lawyers are willing to argue over how many angels can dance on the head of that pin? Which is to say, while courts are quite used to applying standards such as these, their application is rarely straightforward, uncontested, or cheap.

There are legal and business costs that will come with more regulation of intellectual property in the fashion industry. The CFDA plainly thinks these costs are worth the benefits they bring, and it may well be right. But by making this calculation, it also seems to have demonstrated that, contrary to the conventional wisdom, fashion may not have been blazing its own trail by showing how a creative industry can work in a relaxed intellectual-property regime. Rather it simply may have been the last creative business to get onto the bus to lawyerville.