You may have seen this NYT article, “Before Models Can Turn Around, Knockoffs Fly.” It documents the push by elite members of the fashion industry to obtain copyright protection, or possibly formulate a new sui generis (stand alone) form of intellectual property protection for clothing. Counterfeiting, the direct copying of labels, company names and logos, is already illegal by virtue of trademark law. Selling knockoffs, however, which may appear very similar to high fashion items but do not bear false source indicators, are generally legal. As the NYT article puts it: “The cut or details of a garment cannot be copyrighted under existing law, although logos and original prints can be protected.”
Over at Counterfeit Chic, Feminist Law Prof Susan Scafidi gives her take on the issue. She finds knockoffs problematic, and is in favor of adding or reformulating intellectual property laws to offer broader legally enforceable monopolies over fashion designs. I disagree with her about this, but I admire the passion and intelligence she brings to her position, and I appreciate her view that one of the reasons intellectual property protection regimes have excluded clothing items and certain kinds of artistic creativity may be related to the close association between fashion and women.
I tend to be in agreement with many of the points raised by Kal Raustiala and Chris Sprigman, who published an article entitled “How Copyright Law Could Kill The Fashion Industry” in TRN, based on their lengthy law review article on the same topic. But, their focus is not on gender issues, let alone feminism. I understand that some of the beneficiaries of enhanced IP protections would be female designers. In my view, however, facilitating exclusionary acts by designers will be detrimental to far more women than it helps. Trademark law already allows elite designers to charge wealthy purchasers thousands of dollars for single items of clothing without legal competition from counterfeiters. Knockoffs allow less wealthy and/or less trademark conscious women to participate in acts of cultural fashionability based on their personal style preferences. Foreclosing avenues of fashion related self expression, conformist though it may sometimes seem, strikes me as contrary to egalitarian goals of feminism.