Knockoff Artists Take Aim at Small Business

Here is a link to an article about the designers Foley & Corinna.

http://www.nytimes.com/2008/05/21/business/smallbusiness/21look.html?_r=1&ref=smallbusiness&oref=slogin

The poor designers have been knocked off by the likes of Forever 21 after their dress was spotted on Paris Hilton. Another bonus of the article is that it features fellow blogger Susan Scafidi from Counterfeit Chic!

Knock Yourself Off Instead of Out

The left is a bag from Joy Gryson's original line of bags and the bags on the right are her bags from a line she has developed for Target.

Since there are so many ways that designers get their designs knocked off, what is a designer supposed to do? I personally am a little hesitant about the Design Piracy Prohibition Act. There is a question of enforceability: What is protected and what is public domain? How long should a design be protected? I agree that designers should be able to protect their creative work, but should this be at the detriment of the budget conscious consumer? I actually have a proposal for designers in order to decrease the demand for counterfeit goods. Once the demand for these goods decreases, the less likely there will be a chance for knockoffs to be present in the market. Why would consumers buy knockoffs if they have better alternatives?

I recommend a simple business model of versioning. Versioning is when you decide to price something based on value versus cost. Since different consumers are willing to pay different price points for the same product (i.e. a pair of pants), versioning allows designers to offer the same type of product at different price points in order to attract more consumers. Versioning serves as a way for designers to figure out the different consumer groups based on their willingness to pay for a product. Consumers with a high willingness to pay for designer goods will be at the luxury end while consumers with a lower willingness will be at the cost conscious end. This leads to a business pricing differential. How can a designer use this model?

Designers can make different lines at different price points. Some designers have already done this. For example, Donna Karan makes a less expensive DKNY line. Other designers have taken knocking off their own designs to another level. Collaborations with large chain stores also prevents knockoffs. For example, the collaboration of Karl Lagerfield with H&M, Viktor & Rolf for H&M, Vera Wang's Simply Vera line in Kohl's, Isaac Mizrahi for Target, Proenza Schouler for Target, etc.

Here are some examples of designer versioning:

The versions on the left are for budget chains and the versions on the right are the original design collection. Here are pictures of Proenza Schouler's lines and Vera Wang's lines.

Fashion: Utilitarian or Worthy of Protection?

There is a lack of developed American jurisprudence to handle the sophisticated requirements of art in fashion and reconcile them with the utilitarian functionality of fashion: “Under current copyright law, a two-dimensional sketch of a fashion design garners copyright protection as a pictorial work. However, artists lose all copyright protection as soon as they render the sketches into three dimensional garments because clothing is not normally considered to have separable elements.” Megan Williams, Fashioning a New Idea: How the Design Piracy Prohibition Act Is a Reasonable Solution to the Fashion Design Problem, 10 Tul. J. Tech & Intell. Prop. 303.

This Elie Saab dress design sketch would be protected under current U.S. copyright law, but the resulting physical dress from this sketch would not be protected. This approach to copyright protection seems to be ill fitted with the Supreme courts ruling on mass produced, industrially designed products: “Mazer v. Stein granted copyright protection to a lamp because the sculptured lamp base was found to be a ‘work of art’ separable from the objects primary use as a lighting fixture. For the first time, the Court granted copyright protection to an industrially designed, mass produced product.” Id. at 309-310. However, in spite of this ruling by the Supreme Court, American jurisprudence refuses to extend this to dress designs. This is because a design’s artistic elements can not be separated from the utilitarian use of the garment. Id.

In the House Committee hearing for the Design Piracy Prohibition Act, it was contended that this refusal to incorporate fashion design into copyright law actually goes against the natural intention of copyright law: “A law professor at the same subcommittee meeting stated that it ‘is the constitutional intent of copyright law to promote and protect the development of creative industries by ensuring that creators are the ones who receive the benefit of their own intellectual investments.’ Allowing fashion designs to be protected by copyright does not violate the theoretical basis for copyright protection.” Id. at 312.

This law professor is none other than the author of another blog called Counterfeit Chic. You can find her blog link on the right hand side of this blog. I agree with Ms. Scafidi. However, there is a fine line that can be crossed when it comes to enforcing the rights of designers to their creative designs. How can a court decide when a design is simply utilitarian and when it is truly creative? How long can a design be protected for? Due to the cyclical nature of fashion as well as the number of seasons, is it really fair to afford protection on designs for more than a season? How can a designer actually enforce these protections?