Legally Speaking

Time and again in the world of fashion, I come across items that so strongly resemble something previously on the market, I literally stop in my tracks to examine the impostor. I am not talking about the bold, brazen knock offs on Canal Street which usually fall into the category of very obvious (and very illegal) trademark infringement. The murkier area is copyright infringement, and the lines are anything but decisively drawn.

Copyright is limited protection given to creators of original works of authorship that have been reduced to tangible form. Ideas that are so singular as to have only one method of expression are not worthy of protection (for example, there is only one way to boil water, so you cannot receive copyright protection for reducing this idea to writing). This concept of limited protection is known as the idea-expression dichotomy. Fashionista (my favorite blog besides my own) features a section they call 'adventures in copyright' where they display a multitude of clothing seemingly inspired by (or copied from?) another. I read it constantly and evaluate the 2 looks myself to reach my own verdict. More times than not, I find the cheaper alternative to the designer work is guilty. (Can you tell which of the above pink and blue dresses is the $24 Forever21 dress and which is the Aidan Mattox from Saks? The waters are caliginous!)

One of the hurdles designers face in protecting their creations under copyright is defining exactly just what constitutes the 'original work of authorship.' For anyone who has ever gone shopping with a significant other, and taken joy in the sight of a full tool party skirt only to have your companion curl a lip, sneer, and tell you you had to be crazy if you though that was hot, you know that style is subjective. One person may look at 2 identical black shift dresses with shoulder cut outs and see 2 totally different frocks, while another may see that clearly the Chanel on the left is a dead ringer for the Cynthia Rowley on the right. And to a certain extent, a little bit of imitation is the sincerest form of flattery, isnt it? When your friend shows up to a party in a denim and leather ensemble reminiscent of the look you rocked a few weeks ago, you feel happy to have inspired others, right?

Not so much in the design world. When Marc Jacobs dreams up a floral, flouncy frock with a price tag north of $400, and Forever21 offers a strikingly similar number for around $30, its hard to say they are really competing. A prime concept in intellectual property law is the notion that consumers and 3rd parties will be confused, and mistake the Forever21 for the Marc Jacobs. Even fashion neophytes will agree that such mistake is not possible (does a Datsun look like a Mercedes because they both come in red?) But regardless of the lack of feasible consumer confusion over the 2 dresses, it is still a robbery of sorts. The creative expression of a talented designer has been outright copied for the financial gain of a low end chain retailer. We may not shed tears for the uber successful Marc, but think about when this happens to a small time designer trying to make it big. If her look is 'adapted' for mass marketing after a runway show that took her years and mountains of loans to put on, she will never make ends meet in the word in which she was so 'sincerely flattered'. A line needs to be drawn in the sand so that the designers who bring so much joy to our eager eyes each season can afford to keep doing so with integrity and inspiration.