In February 2015 Gucci unveiled this very
furry shoe. I love this ridiculous thing. I can’t afford to spend $1000, but no problem! I can buy this knockoff. Or this one. So, which of these are legal? Trick question. And it’s a constant fight in the fashion
industry. In the US, you can protect songs. “I like those Balenciaga's, the ones that
look...” Movies. “That blue represents millions of dollars
and countless jobs…” Or paintings. Why not fashion designs? “Knockoffs” mostly are not counterfeits. People tend to conflate them but they’re
not the same. This is a counterfeit. It copies the symbols of the brand that made
the original. So counterfeits are typically illegal. Knockoffs, on the other hand, just resemble
the design of the original. And that’s usually fine. That’s because intellectual property laws
only protect some kinds of designs. A trademark is any symbol that indicates to
consumers the source of products or services. This medallion on the front, which is the
Tory Burch logo, tells you where the flat comes from. It comes from Tory Burch. A patent is different. A useful and novel invention. They don’t work for most fashion designers
because you can’t get damages until it’s granted and by the time it's granted most
fashions are out of fashion. In fashion, the main battleground is Copyright. That is the right exclusively to copy or to
distribute an artistic or literary work that is original. Like… “You’re wearing a sweater that was selected
for you by the people in this room.” But not... The shape of this shoe is not copyrightable. Fashion designs are typically thought of as
useful articles. Copyright doesn't protect useful things. It only protects artistic or literary things. Unlike a song or a movie, a shoe or a T-shirt has utility
as much as design. But… what about this? Not my thing? This might seem at a certain level to be kind
of bizarre. But there is nonetheless a useful aspect to
the garment. It does possibly keep you warm. Wait! It’s art! Sort of. And now… It’s a gown. You have copyright on the painting. I can certainly have a copyright on the fabric
design. I can't have a copyright on the shape of the
dress. The Subcommittee on Intellectual Property,
Competition, and the Internet will come to order. The truth, the whole truth, and nothing but
the truth so help you God. Fashion design is intellectual property that
deserves protection. We create something from nothing at all. And in’t that the American dream? I don’t agree with you. But you’re very impressive in your testimony. They say, well, we're artists and we deserve
protection. The answer to that argument is at least in
the States we don't tend to make decisions about intellectual property based on what
people deserve. We tend to make decisions based on what we
think is healthy for creativity. The Constitution does give Congress the right
to stop copying, but only to “promote the progress” of creative industries. When you look at countries across the world,
you’ll see that there’s a correlation between the strength of intellectual property
laws and higher GDP. But in fashion, Sprigman believes that it’s
actually the ability to copy that promotes progress. Fashion designers take "inspiration," as they
put it, from existing designs and they do this with abandon. But this is what creates trends, and trends
sell fashion. When the copying proceeds to a certain point,
fashion forward people have had enough. They jump off. They jump on to the new trend that copying
has helped to set. This rapid cycle, created by the freedom to
copy, actually forces the fashion industry to innovate. If you look at the prices of fashion goods
over time, what you see is that that top ten percent of fashion goods in terms of price, the price
of these is going up and up and up over time. Whereas everything else, those prices are
staying stable or maybe falling a little bit over time. It doesn't seem like competition from knockoffs
is disciplining the price of the luxury stuff. What seems to be happening in the fashion
industry is what's happening in America and indeed in the world. The rich are getting richer disproportionately,
and the clothes they wear as a result are getting much more expensive. The people who make those clothes, the companies
that make those clothes, are profiting. New technology and the speed of production has
amplified the two views on knockoffs. Today, digital images from runway shows in
New York can be uploaded to the Internet within minutes, and be copied, and offered for sale
online within days, which is months before the designer is able to deliver the original
garments to stores. That practice was not handed to us by God
or by law. If the industry at the high end was very concerned
about the speed of imitation, that practice would change. It isn’t. So it’s hard to protect fashion designs
because it’s not obvious that protecting them promotes progress. And from a legal perspective, that’s all that
matters. Even though to the artists, that’s not the
only thing at stake.
