November 2, 2008 by James Cheng
In fashion, the thin line between inspiration and “piracy” becomes increasingly blurred as fashion executives, designers, editors, and lawyers struggle to define what constitutes unethical imitation. Daniel Drapeau, a lawyer representing high-profile clients, criticizes the lack of legal protection in Canada by questioning whether we should be encouraging “cheap chic merchants”. Franco Rocchi of Le Chateau, however, rejects the accusation that he is selling knock-offs and argues that his creative directives instead come from consumers. Indeed, the contribution that fashion-forward retailers like Le Chateau, H&M, and Zara make to society is the dissemination and democratization of fashion to the masses. For this reason, I believe we should be wary of stronger IPRs in the fashion industry.
The most persuasive arguments for stronger IPRs are that they create incentives to innovate and people are entitled to the fruits of their labour. While these arguments may hold true for other industries, the lack of copyright protection for fashion design has not deterred investment nor innovation. In fact, Raustiala and Sprigman believe that it may have actually promoted it because of the positional nature of clothing and the cyclical nature of the industry. They call this the “piracy paradox” because fashion counter-intuitively operates within a low-IP equilibrium in which design can be mostly unprotected, yet economically successful. Hettinger further points out that separating out the individual contribution of the innovator is not easy and consequently, IPRs often go to the claimant, ignoring the vast contributions of others. This is especially true in fashion, where trends and styles are not only self-reflective, but also systematically filter from the runway to secondary designers, department store brands, and Gap outlets.
I question, then, what difference it makes to Hermés that the Jelly Kelly, a lower-quality rubberized version of the original, is available to those who appreciate but cannot afford high style. If anything, Hermés has been able to raise its prices to people willing to pay a premium for authenticity. Alas, the traditional orthodoxy of IPRs has been so ingrained in academia and law that I wonder whether we are simply protecting IP for the sake of protecting IP. There should be a real public interest concern in broadening what we consider “fair dealing” in order to democratize fashion and foster individual self-expression. In CCH, the Canadian courts signalled a shift towards a more liberalized, user-centric approach to fair dealing, but they did not go far enough—at least, in the context of the fashion industry.
D’Agostino offers a pragmatic solution that would allow industries to determine their own fair dealing best practices. This approach might legitimize the “imitation”/inspiration that already takes; the reality is that “piracy” enables fashion to move more quickly to the masses, in turn spurring innovation for that next “something new”. While this may be hard for the designer, ultimately “it means that … as a whole there is more innovation, more competition, and probably more sales than there otherwise would be”.