Should the US go after fashion knock-offs?

posted at 4:00 pm on February 27, 2011 by Ed Morrissey

Tonight’s fashions on the Oscar runway will become next month’s featured dresses in mass-market haute couture stores, and eventually will wind up hanging on racks at discount stores and swap meets.  One designer, Diane Von Furstenberg, wants Congress to put an end to the decades-long cycle in the clothing industry by declaring that original designs have a three-year exclusive with the designer.  But what exactly qualifies as “original,” and does this new proposal protect innovation in the fashion industry — or in the lawsuit industry?  Ted Balaker looks at the question for Reason TV:

The whole point of intellectual property is to spur innovation, and that, according to supporters, is exactly why the fashion industry needs such a bill. Without tougher protections, they say designers will have less incentive to create new looks.

But is the fashion industry really hurting for innovation? And are top-tier designers like Von Furstenberg really getting ripped off by bargain hunters? And even if they were, who’s to say whose look is truly original?

Johanna Blakely of USC’s Norman Lear Center worries that the relentless push for more intellectual property protection could lead to a situation where big design houses lawyer up and sue young designers. Designer Galina Sobolov, head designer and owner of Single by Galina Sobolov, agrees.

“If this bill was in effect as we grew our company, we would have faced probably millions of lawsuits,” says Sobolov, whose designs have been worn by celebs such as Katy Perry and Rachel Hunter. “And we would have never actually had a company.”

In one sense, I sympathize with Von Furstenberg and other designers whose work gets ripped off by those attempting to pass off counterfeits as originals.  American law already bars that practice, though it is hard to enforce.  This would be even more difficult, especially given the ambiguous nature of fashion.  Who gets credit for the wrap dress, as Balaker asks — the industry titan Von Furstenberg, or the woman who designed and successfully marketed one thirty years earlier?  Or should the credit go to the Greeks?

In theory, the law may sound beneficial by protecting intellectual property.  In practice, though, it will become a tool for those with deep pockets to attack those without the means to defend themselves from predatory lawsuits.  It will allow big design houses like Von Furstenberg to eventually keep competitors from arising in the market, and will serve to entrench the existing power structure in the industry from serious challenge. That doesn’t sound like an environment for innovation, except for trial attorneys.

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I’m not too concerned about this issue, but heck, no one has ever accused me of being fashionable.

OmahaConservative on February 27, 2011 at 4:03 PM

I’m one of these types who, when I see what is considered to be the latest fashion trend, find myself in a perpetual state of “WTF?!!!”

pilamaye on February 27, 2011 at 4:08 PM

A design patent is what is needed here. But all patents are founded on the prospect that the various aspects of the patent have never been observed in public before — they are, in combination, of a unique nature. As you have pointed out, the room for innovation doesn’t come from the separate big things like the pattern, or the gathering, or the choice of fabric — it’s the fusion of these when worn.

If someone knocks off the look, they’ve stolen a design.

unclesmrgol on February 27, 2011 at 4:09 PM

What’s next? Are they going to apply IP law to hair styles?

Blake on February 27, 2011 at 4:09 PM

Is it just me, or does the thumbnail for this link make “Everybody Have Fun Tonight” start running through your head?

playblu on February 27, 2011 at 4:11 PM

And 99% of these designers are probably Barry Soetero voters. The hypocricy is as thick as polyester. C’mon, Diane, just spread the wealth.

SouthernGent on February 27, 2011 at 4:16 PM

Gator Boots!!!!!!!!!!!!!!!!

WTF!

canopfor on February 27, 2011 at 4:17 PM

I think the intellectual property laws are being pushed to point of stifling economic activity rather than facilitating it, as was the intent.

sharrukin on February 27, 2011 at 4:19 PM

O/T
========

February 27, 2011

Union Member Attacks, Injures Tea Party Activist at MoveOn.org Organized Rally
***************************

Sacramento’s ABC News 10 reported on the union rally and Tea Party counter rally in Sacramento today. ABC’s online report makes cursory mention of an incident of union violence directed at Tea Party activist Rodney Stanhope: “Police cited one man for battery after he allegedly shoved a tea party supporter.”

#2 Videos
**********

http://nation.foxnews.com/culture/2011/02/27/union-member-attacks-injures-tea-party-activist-moveonorg-organized-rally

canopfor on February 27, 2011 at 4:20 PM

In one sense, I sympathize with Von Furstenberg and other designers whose work gets ripped off by those attempting to pass off counterfeits as originals.

Aren’t there 2 different issues here? Knocking off a designer’s creation is not the same thing as manufacturing, say, fake Gucci bags, using their logo and selling them via street vendors. If someone knocks off a V.F. dress and uses a fake V.F. label that is counterfeiting, but copying a dress design as closely as possible and reproducing the imitation is not.

Buy Danish on February 27, 2011 at 4:23 PM

The whole point of intellectual property is to spur innovation, and that, according to supporters, is exactly why the fashion industry needs such a bill. Without tougher protections, they say designers will have less incentive to create new looks.

Well then. Let’s just apply the pharmaceutical standards here. Say Glaxo spends 10 years and 2 billion dollars on a new heart medication and it has only a year by which it can market the drug under its trade name before ‘knock-offs’ can then subsequently market and sell the same drug for much lower costs because the R/D has already been done for them by Glaxo. How about these fashion guys get the same standards applied to them–they can market their jeans/wraps/whatevers under their own name for a year, then let the little guys create a ‘knockoff’ and service the public just like generic ibuprofen does?

ted c on February 27, 2011 at 4:27 PM

This is so stupid. Innovation, Please! Look the human body has not changed its general shape since we crawled out of Africa. Practically every dress form has already been invented by some prior civilization — Egyptians, Greeks, Romans, Goths, Chinese, French, Spanish, hell even Americans. Go thru the pages of the history books and I can probably find some prior art from somewhere. That’s where it gets sticky. If I can show that particular toga on a Greecian urn is prior art to what is bouncing down the runway, does that not invalidate the ‘patent’? Remember the human body has not changed that much.

Must be a slow news day hey Ed?

Dr. Dog on February 27, 2011 at 4:34 PM

ted c on February 27, 2011 at 4:27 PM

In the case of pharmaceutical patents, the period of protection is 12 years.

unclesmrgol on February 27, 2011 at 4:35 PM

Look at the firearms industry and the attempt to regulate assualt weapons. Gunsmiths (designers) made little alterations which made the product slightly different and thus outside the reach of the govt. to regulate. The same will happen here.

keioki on February 27, 2011 at 4:36 PM

I have to admit, I’m guilty of buying knock-offs when I have been travelling in Asia. South Korea used to be notorious for making and selling some very good quality knock-offs of designer clothing. The $20 Rolex’s and $10 Nike’s not so much.

simkeith on February 27, 2011 at 4:38 PM

On a limb, pardon the pun, but naked Marilyn strikes a pose in a chair then naked Angelie strikes an identical pose in a different chair next year. Who owns the pose? Or is it artistic license? Or do you just want to see Marilyn and Angelie in that pose?

Limerick on February 27, 2011 at 4:41 PM

Never fear. I’m sure these fashions are safe from the clutches of Walmart and Target.
http://www.chicagotribune.com/sns-pgc-weird-runway-fashions-pg,0,1345485.photogallery

mizflame98 on February 27, 2011 at 4:41 PM

P.T. Barnum would love the fashion industry. It easily parts a fool from his/her money.

chemman on February 27, 2011 at 4:43 PM

Me thinks,this will open up,more big govenment!
=================================================

Fashion Industry Piracy
May 19, 2009
************

As we have discussed before, since fashion is clothing and legally considered a “useful article” it is not eligible for copyright protection.

This new bill would allow fashion designs copyright protection for a three year term. We love the idea of putting a stop to all the blatant copycat designs out there; however we are a bit concerned as to what would be deemed infringement (So if I copyright a v-neck t shirt first, can I sue the GAP? Sweet!).

Part of this bill mandates that a searchable database of designs be maintained by the US Office of Copyrights.

Can you imagine all of the paperwork and red-tape involved every time you design a new style, just to insure you won’t be sued?

Or having to search a database of hundreds of thousands of designs to make sure that your original idea doesn’t look “legally” similar to someone else’s? Still there’s definitely merit to the concept of this bill as Stephen Kolb executive director of the CFDA said,

“Original design ideas are as much intellectual property to a designer as lyrics and notes are to a musician. Without protection the very foundation of their business is at risk.”
(more…)

http://www.39thandbroadway.com/fashion-industry-piracy/

canopfor on February 27, 2011 at 4:47 PM

Well then they’re going to have to go into every home that has a sewing machine and prosecute.

jeanie on February 27, 2011 at 4:48 PM

DVF is dead wrong. The people who buy the dresses put out by ABS or BCBG a few days after the Oscars have no illusion they are buying a designer dress. There are always huge differences in quality and construction.

And, these designers constantly get inspiration from previous trends, designs, designers. Watch any of the fashion-competition shows like Project Runway or the Fashion Show and there’s always a look at other designers. It’s near impossible to be completely original.

In fact, how can Ms. Von Furstenberg be worried about originality when she’s STILL making the wrap dress after 30 years?

norcalgal on February 27, 2011 at 4:49 PM

In the case of pharmaceutical patents, the period of protection is 12 years.

unclesmrgol on February 27, 2011 at 4:35 PM

20 years from date of filing the patent. By the time the drug clears all regulatory wickets, it averages about nine years of protection.

Lots of prior art in fashion. How much difference is patentably distinct would take a lot of case law. Too difficult to get a broad patent or even a narrow design patent. It would take a lot of money for each filing. Too hard to enforce. Too hard, IMHO.

NaCly dog on February 27, 2011 at 4:54 PM

Well,dis is interesting!
===========================

The CFDA Is ‘Disappointed’ By Michelle Obama’s Alexander McQueen
*********

The silver Rachel Roy sheath dress Michelle Obama wore to the State of the Union last night was a safe choice, and not mostly because it had sleeves, but because it was by an American label. Those bare arms that used to be Michelle’s biggest sartorial conundrum have taken a backseat to the nationality of her clothing. Oscar de la Renta, who has lamented Michelle’s wearing non-American labels before, magnified the issue last week when he vocalized his disapproval of the Alexander McQueen gown Michelle wore to the state dinner. Council of Fashion Designers of America president Diane Von Furstenberg took the time — as she recovers from a recent ski accident — to issue a statement supporting de la Renta’s sentiments.

“CFDA believes in promoting American fashion,” the statement read. “Our First Lady Michelle Obama has been wonderful at promoting our designers, so we were surprised and a little disappointed not to be represented for this major state dinner.”

“For a lot of designers, their ability to grow their businesses is going to be in the global marketplace. In some instances, there’s really no growth in the U.S. and [these designers] need to do that to succeed. That’s important to us. So anytime that there’s a stage or international setting that you can celebrate American fashion, it’s a good thing.”

Michelle does not dress exclusively in American labels, though she had for state dinners until last week.

The CFDA has an obligation to advocate on behalf of its members, who are surely aware of the walking business opportunity Michelle Obama represents.

A study published in the Harvard Business Review placed an estimated value on the public appearances Michelle made wearing clothing from November 2008 to December 2009 at $2.7 billion, which is not an insignificant sum. When Michelle wore a label’s clothing, the stock spiked upward. If that label wasn’t listed on the stock exchange, the stores that carried them benefitted.
(more….)

http://pichaus.com/watch-mobama-cfda-%25E2%2580%2598disappointed%25E2%2580%2599-@41dba40b4433afeca921a55c5feec5ec/

canopfor on February 27, 2011 at 4:54 PM

Council of Fashion Designers of America(CFDA)
**********************************************

http://www.cfda.com/

canopfor on February 27, 2011 at 4:59 PM

As in all art, there is nothing NEW under the sun in fashion.

Get over yourself, Diane. You didn’t invent the wrap dress.

And truth be told, the Greeks, as they did with much of their culture, probably ripped the toga design off from another culture they saw. (They were fantastic at finding the best ideas from where they went and incorporating them into their culture. Much like America now.)

tickleddragon on February 27, 2011 at 4:59 PM

Without tougher protections, they say designers will have less incentive to create new looks.

And we are supposed to care about perpetuating the bloated fashion freakshow world… why?

heldmyw on February 27, 2011 at 4:59 PM

In the case of pharmaceutical patents, the period of protection is 12 years.

unclesmrgol on February 27, 2011 at 4:35 PM

yeah, but that’s from the date that they file for the protection. Within the period of 12 years they have to do animal trials….clinical trials…efficacy..and, by the time that they get down to selling it, the amt of time left out of that twelve years, IIRC, is 1-2 yrs.

ted c on February 27, 2011 at 5:02 PM

Sumpin stinks!
===============

Michelle Obama’s purse controversy
July 13th, 2009
****************

Can you tell if Michelle Obama’s purse is a designer knockoff or if it’s the real thing?

The First Lady is getting a lot of flack over this alleged designer purse she carried when she was in Moscow last week.

The Luxury Italian Leather Alligator Clutch costs around $5,950! Wow, even I don’t own a purse, clothes or shoes worth that amount.

However, The First Lady claims it’s a designer knockoff worth $875. I believe the cheaper version is still quite expensive!

Mrs. Obama has been known in the past for not going too overboard with her shopping! For me, this just seems a little too much when we’re dealing with a bad economy. I feel that The First Lady should be setting an example for those, like me, who can’t afford those fabulous luxuries!
———————————————————

Continue reading on Examiner.com: Michelle Obama’s purse controversy – Washington DC budget style | Examiner.com http://www.examiner.com/budget-style-in-washington-dc/michelle-obama-s-purse-controversy#ixzz1FCQxAWVh

canopfor on February 27, 2011 at 5:06 PM

Design patent terms are 14 years. And please tell Bjork and Lady Gaga that plant patents last 20 years also.

1 caveat. You must continue to pay your maintenance fees to keep your patent active.

If the fashion industry can somehow manage to pass this, look for an incredible increase in overheard expenses draining any profits, and a failure of all fashion patent applications after the first filling rush, because they infringe on an existing patent. So after a few years it’s a dead letter anyway.

NaCly dog on February 27, 2011 at 5:07 PM

I’m not too concerned about this issue, but heck, no one has ever accused me of being fashionable.

OmahaConservative on February 27, 2011 at 4:03 PM

This seemingly innocuous issue is part of the Combating Online Infringements and Counterfeits Act (thanks Orrin, you shill). When you see this issue being flogged at supposedly conservative sites such as Big Hollywood you know it time to worry.

SaintGeorgeGentile on February 27, 2011 at 5:08 PM

The whole point of intellectual property is to spur innovation, and that, according to supporters, is exactly why the fashion industry needs such a bill. Without tougher protections, they say designers will have less incentive to create new looks.

Clearly a lack of tougher protections will eventually lead to rationing of new looks. Short of any legislative measures, we at least need the Obama Administration to pour some of the remaining Stimulus money into funding New Look R&D.

SlaveDog on February 27, 2011 at 5:13 PM

And it may be time for a New Look Summit. I’m serious.

SlaveDog on February 27, 2011 at 5:15 PM

One thing is for sure. Diane should not wear prints.

jeanie on February 27, 2011 at 5:19 PM

NaCly dog on February 27, 2011 at 4:54 PM

Correct — except for biologics — they are the subclass shortened to 12 years under the new ObamaCare legislation.

unclesmrgol on February 27, 2011 at 5:19 PM

jeanie on February 27, 2011 at 5:19 PM

Why? Id think she must be very thin from living on Martinis all those years.

OmahaConservative on February 27, 2011 at 5:21 PM

Put some lipstick on that porker.

astonerii on February 27, 2011 at 5:23 PM

Yes, regulate fashion. Why not? /s

BKeyser on February 27, 2011 at 5:30 PM

This doesn’t worry me too much, Ed knowing so much about women’s fashion. But if we get a post anytime soon about drapes or home decoration, we might have to have an over-under contest on his coming out party.

/s

TXUS on February 27, 2011 at 5:31 PM

Hmmmm. There’s a huge fashion knockoff pushing facsist food options lately. Must be the latest craze.

Key West Reader on February 27, 2011 at 5:32 PM

i can’t see that regulating fashion is going to do anything about the crappy ass clothing selections that I see when we take our daughters shopping.

ted c on February 27, 2011 at 5:38 PM

Key West Reader on February 27, 2011 at 5:32 PM

FLOTUS should wear a tent to conceal that big butt.

OmahaConservative on February 27, 2011 at 5:38 PM

Yeah. This is where the priority needs to be…

ladyingray on February 27, 2011 at 5:43 PM

O/T
====

Sunday, 27 February 2011
Onion News: Al Qaeda Attacks Internet With Photo Of Adorable Piglet
****************

http://www.theospark.net/2011/02/onion-news-al-qaeda-attacks-internet.html

canopfor on February 27, 2011 at 5:44 PM

Key West Reader on February 27, 2011 at 5:32 PM
========================
FLOTUS should wear a tent to conceal that big butt.

OmahaConservative on February 27, 2011 at 5:38 PM

OmahaConservative:It better have a dam* Union Label,or
theres going to be h*ll to pay!(snark):)

canopfor on February 27, 2011 at 5:47 PM

canopfor on February 27, 2011 at 5:47 PM

That’s gonna’ take a ton (pun intended) of union workers good buddy.

OmahaConservative on February 27, 2011 at 5:50 PM

canopfor on February 27, 2011 at 5:47 PM
====================================
That’s gonna’ take a ton (pun intended) of union workers good buddy.

OmahaConservative on February 27, 2011 at 5:50 PM

OmahaConservative:True dat,and,don’t forget to slap a
wide load sign on dat,hehe!:)
================================================

http://image44.webshots.com/45/9/82/60/304298260pktdvc_fs.jpg

canopfor on February 27, 2011 at 6:01 PM

I want to reform trademark laws too. The horror stories of trademark law abuse just kill me and the economy.

Tim Burton on February 27, 2011 at 6:01 PM

I’m not too concerned about this issue, but heck, no one has ever accused me of being fashionable.

heh….

Chuck in Detroit on February 27, 2011 at 6:03 PM

What’s next? Are they going to apply IP law to hair styles?

Blake on February 27, 2011 at 4:09 PM

I said exactly that a few days ago. I demand that you cease and desist from saying that again.

elfman on February 27, 2011 at 6:05 PM

Ive worked in the fashion industry. EVERYTHING is a knock off of something.

American Elephant on February 27, 2011 at 6:10 PM

OmahaConservative on February 27, 2011 at 5:21 PM

Then it must be all the peanuts.

jeanie on February 27, 2011 at 6:12 PM

Watching that seriously makes me want to go out back with a barrel and a lighter and burn the DVF dress in my closet. Barf.

/Only bought it because it was on sale–no one else wanted it.

These people need to stop acting like whiny entitled pigs.

Also protip: If you like fashion, buy second hand. Clothes generally have a poor resale value, and rich people tend to have a poor sense of money management when it comes purchasing and retaining their dailywear. Also, your money goes to the reseller, not the fashion house.

/$2000 Gucci for 100$, NWT? Lanvin for 90$? Yes, please. Natural fibers FTW.

One thing is for sure. Diane should not wear prints. wear a bag over her head.

jeanie on February 27, 2011 at 5:19 PM

Fixed.

DangerHighVoltage on February 27, 2011 at 6:16 PM

http://www.theospark.net/2011/02/onion-news-al-qaeda-attacks-internet.html

canopfor on February 27, 2011 at 5:44 PM

Hopefully the Israelis are already at work using recombinate memetics to convert the Arab spring uprising to bring down the Muslim Brotherhood.

pedestrian on February 27, 2011 at 6:17 PM

The country is broke.
The unions are trying to bring the country down.
The middle-east is aflame, and radical islam is spreading unchecked throughout the world.

…Oh look! A squirrel…

bofh on February 27, 2011 at 6:21 PM

A design patent requires an explicit statement of what is claimed. Seems to me a CAD database of designs could be set up that would show whether a specific design fit any of the patented claims.

That would be a nice transfer of money from the fashion industry to the software industry, which I personally am very much in favor of.

pedestrian on February 27, 2011 at 6:23 PM

Ive worked in the fashion industry. EVERYTHING is a knock off of something.

American Elephant on February 27, 2011 at 6:10 PM

Also, THIS. Everything is a copy of something else.

Think Art Deco was a thing of the 20′s-30′s? It was also a thing of the 50′s, and the 80′s. It also borrowed heavily from ancient Egyptian, gothic, and other influences. Art Noveau drew heavy inspiration from Asian art and nature. Why do you think they called it “Etruscan Revival?” Own a fur coat? Thank a caveman.

Unless you were the first proto-human to decide to hide his junk behind the hide of his most recent kill, you don’t have a claim to anything.

DangerHighVoltage on February 27, 2011 at 6:29 PM

A fashion patent is a step in the wrong direction. Instead, we need to rid of software patents and Sarbannes-Oaxley so that the tech sector can bloom again like it did in the 1990′s. Tech means good jobs.

thuja on February 27, 2011 at 6:34 PM

The whole point of intellectual property law is not to spur innovation it’s to guard against theft.

jhffmn on February 27, 2011 at 6:41 PM

Protection of registered trademarks and brands is well established. If you make a counterfeit Rolex watch, you’ve stepped over the line and if you arrive at a Swiss airport wearing one, you’re prone to having it taken right off your wrist and dropped into the Transparent Barrel of Shame. But what about a gold-plated watch that looks a lot like a Rolex and bears the logo “Solex”? Well, that’s where it gets difficult. It seems to me that as long as somebody who isn’t a complete idiot wouldn’t confuse it with the genuine article, there isn’t any infringement.

Similarly, in fashion, there is nothing whatsoever new under the sun. Fashion designers are, however, entitled to protect their registered trademark labels and embedded logos and sue those who counterfeit them, since that’s a clear case not of making something similar in design but fraudulently representing a product as being that of another manufacturer/designer. It’s like, nobody goes after AMD when their CPUs run programs written for Intel processors, but if they started stamping them “Intel Pentium”, Intel would have a valid cause of action to stop them doing that.

John Walker on February 27, 2011 at 6:44 PM

Looks like there continues to be confusion on this thread between a counterfeit and a knockoff. A counterfeit is an attempt to have the buyer believe she is purshasing an original, same label. The design is copied and so is the label itself.

A knockoff is just a copy of the design.

I was in the garment business and so many knockoffs are as good in construction quality or better than the original. Usually the difference is in the price of the fabric. The original might be silk and the knockoff is poly-rayon. But the content label clearly states polyester-rayon, there is never an attempt to fool the customer as to fiber content.

There would be so much subjective bullshit to fashion protection. I take an original and instead of 7 buttons down the front I use 5. Instead of embroidery I use puff silkscreen,instead of the print being little honey badgers, the design has little ferrets, on and on. As Ed said, this would just encourage bullying by the large firms with the money in their pockets.

And as someone else pointed out, most of the fashion tools probably voted for Barry, so screw em.

PC14 on February 27, 2011 at 6:46 PM

Most knock-offs have some thing different about them so as to avoid any legal issues. For example, a knock-off Coach handbag may have a serial number but it isn’t listed with Coach, or the leather might be different qaulity, or the logo might be missing from the zipper tag, etc. Does Coach care? Probably not, because the people buying the knock-off couldn’t afford the genuine Coach.
As for clothing, I just don’t see how a designer can claim ownership of a design that probably was based on another design. Von Furstenberg always claimed she invented the wrap dress which wasn’t true. The basic design had been around for a long time

Deanna on February 27, 2011 at 6:54 PM

The whole point of intellectual property law is not to spur innovation it’s to guard against theft.

jhffmn on February 27, 2011 at 6:41 PM

You need to guard against theft in order to spur innovation. There’s a few cases where the enjoyment of doing something is enough motivation, but to permit the investment of serious money for most things requires property protection.

pedestrian on February 27, 2011 at 6:55 PM

Okay, call me clueless, but what’s with all the honey badger references lately? What did I miss?

DangerHighVoltage on February 27, 2011 at 6:56 PM

Okay, call me clueless, but what’s with all the honey badger references lately? What did I miss?

DangerHighVoltage on February 27, 2011 at 6:56 PM

DangerHighVoltage:Its as nasty as a “Killer Rabbit”!:)

canopfor on February 27, 2011 at 7:00 PM

I think the intellectual property laws are being pushed to point of stifling economic activity rather than facilitating it, as was the intent.

sharrukin on February 27, 2011 at 4:19 PM

I don’t think it’s needed at all and I am suspicious of those who want it. They will begin with the idea of protecting original creative designs and end with making it illegal to decorate your house the way you saw it in a magazine. We don’t need any more new laws. We need to eliminate departments, cut government agencies and repeal a whole host of other laws.
Nobody wants the counterfeit unless you are poor. If your wealthy, you want the actual thing. If you are middle class, you want the actual thing. If you want people to buy the actual thing you won’t need to protect it with draconian laws. Just make a good product.
How would this effect car designs? Everybody copies the looks of the better cars. Do you think Mercedes cares if KIA copies one of their designs? Will Mercedes lose customers to KEA? I don’t think so.
What if some mom and pop diner makes a fake Big Mac. Will McDonalds come crushing in and destroy them? Will it be illegal to make a fake Big Mac in your home?
Yeah, unintended consequences.

JellyToast on February 27, 2011 at 7:01 PM

Okay, call me clueless, but what’s with all the honey badger references lately? What did I miss?

DangerHighVoltage on February 27, 2011 at 6:56 PM

http://www.youtube.com/watch?v=4r7wHMg5Yjg

sharrukin on February 27, 2011 at 7:01 PM

I heartily recommend Gary Shapiro’s book “The Comeback” on this topic. He runs the electronic gadget trade group and is constantly battling the content society because each new device creatively destroys other industries. Copyright law has only gone in one direction (longer). These protections tend to hamper innovation. At one time, the content industry tried to outlaw video tape recorders, claiming that they caused theft of IP. The courts came up with some kind of First Use theory, claiming that if you bought a movie or record, whatever you did with it after that was okay. Thus came the digital age.

Anyway, I would disagree with this attempt to further extend protections and I think it would hamper innovation in the clothing industry. She’s really just whining about discount stores and the marketing of unsold inventory. Very similar to the music business. It’s just time for her to come up with a new business model.

phillypolitics on February 27, 2011 at 7:08 PM

I don’t think it’s needed at all and I am suspicious of those who want it. They will begin with the idea of protecting original creative designs and end with making it illegal to decorate your house the way you saw it in a magazine. We don’t need any more new laws. We need to eliminate departments, cut government agencies and repeal a whole host of other laws.

Exactly. We have books that are being handed down to the descendent’s of those who wrote the book, or purchase more than half a century after being written or more. I think there is a major problem with treating intellectual property the same as real property. The origins of intellectual property are very different and being honest, most books, clothing designs, movies and other such media are borrowing heavily from others to create their product. There isn’t much original about a romance novel and yet they claim you cannot do to them what they freely did to create it? The other problem is where do you draw the lines without assuming control of people’s lives to an absurd degree. McDonald’s has prevented people from opening restaurants with the last name of McDonald and seems more than a little intrusive.

Yeah, unintended consequences.

JellyToast on February 27, 2011 at 7:01 PM

We have yet to see all of what those might be.

sharrukin on February 27, 2011 at 7:09 PM

Someone admired my fur collar the other day, until i just pointed out that my dog had sore paws and wanted to be carried home….

Fortunata on February 27, 2011 at 7:11 PM

Most knock-offs have some thing different about them so as to avoid any legal issues. For example, a knock-off Coach handbag may have a serial number but it isn’t listed with Coach, or the leather might be different qaulity, or the logo might be missing from the zipper tag, etc. Does Coach care? Probably not, because the people buying the knock-off couldn’t afford the genuine Coach.

Deanna on February 27, 2011 at 6:54 PM

Actually, it’s the lower-tier designer brands who are the most likely to be directly harmed by counterfeit sales, but they are less likely to crack down on it. Hermes (with their bags that can coat upward of 100 grand EACH) is one of the most vigorous companies in the attack against counterfeit sellers. Coach? Not as much, though Coach actually stands to lose more than Hermes through the sale of a counterfeit bag.

Low-tier Coach bags cost somewhere in the vicinity of $200-400 per piece. If you live near an outlet, you can get genuine Coach for <$100. Consider that a decent Canal Street knockoff Coach costs ~50$. Not that much of a difference. The customers for the genuine and knockoff bags overlap quite a bit.

The low-end price for a Hermes bag is $3000-4000. The most desirable bags of their range START at $10,000 for the basic model and go up depending on what extras you want. That's the cost of an entire car, or several months rent for a normal person. Canal Street knockoff? $100-200 depending on quality. The person willing to spend $200 for a knockoff is NOT the same person willing to drop $10k on a freaking PURSE. Hermes loses no customers to knockoffs–either you're the type to drop stupid cash on a purse or you're not.

This is at a glance kind of weird but the logic behind it is this: Hermes is extremely protective of their image. They are the most exclusive of exclusive designers. Some of their bags have closed waitlists that are near impossible to even get on unless you're a celebrity or nobility. Lucky enough to be invited to get on the waitlist? Your purse will arrive in 2-3 years. That's right, even if you have the money to buy, the company won't even necessarily decide to sell you a bag. It's the ultimate forbidden fruit effect. If you see a person walking down the street with a Kelly or Birkin bag, you're (supposed to) think "Wow, that person must be IMPORTANT." (ack, barf) Now if you see a proliferation of Hermes knockoffs and Hermes suddenly becomes *gasp* common on the streets, the brand loses some of that desirability in the eyes of those who purchase the genuine article. A woman who spends ten grand on a purse wants the world to know how special she is. (again: ack, barf) She wants to be the only woman on the street with that purse. If everyone else has a copy, she'll go drop her benjamins on some other overpriced tote bag.

Coach, on the other hand, is an "entry level" luxury brand. It's favored by people looking for a bit of status but who don't want to break the bank. It's worn by people of all social classes and their products are freely available online and in department stores. A knockoff Coach sale might cost Coach the profits of one bag, but it doesn't really hurt their brand image. Coach is prolific already, and their marketing strategy is to get people of all social persuasions to buy as many of their brightly colored bags as possible.

/end derail

DangerHighVoltage on February 27, 2011 at 7:16 PM

If we’re talking about imitative clothing, regulation is silly. I know that there is a difference between the $$$ silk, well-constructed dress I splurged on at Nordstrom versus the polyester, won’t-last-long one I bought at Macy’s on sale – even if they’re both blue, strapless cocktail dresses with embroidered hems. People buy what they can afford, and are not deluded into thinking that the cheaper dress is as good as the designer dress!

Legitimate (ha) counterfeits, however, are different. Making a direct copy of an item with the intent to claim that it is the same as the genuine designer article is not the sames as the aforementioned scenario.

JeepGirl on February 27, 2011 at 7:35 PM

*same as

JeepGirl on February 27, 2011 at 7:35 PM

Less incentive? Puh-lease. Their incentive is a thousand hungry designers who are eager to take their place.

John the Libertarian on February 27, 2011 at 7:38 PM

Here is an interesting point about some of this…

http://www.baen.com/library/palaver6.htm

As a practical proposition, the theory behind the Free Library is that, certainly in the long run, it benefits an author to have a certain number of free or cheap titles of theirs readily available to the public. By far the main enemy any author faces, except a handful of ones who are famous to the public at large, is simply obscurity. Even well-known SF authors are only read by a small percentage of the potential SF audience. Most readers, even ones who have heard of the author, simply pass them up.

Why? In most cases, simply because they don’t really know anything about the writer and aren’t willing to spend $7 to $28 just to experiment. So, they keep buying those authors they are familiar with.

Let me begin by posing a simple question. Does anyone have any real evidence that having material available for free online-whether legitimately or through piracy-has actually caused any financial harm to any author?

The entire argument for encryption rests precisely upon this PRESUMPTION. A presumption which has never once been documented or demonstrated-and which, to the contrary, has been cast into question any number of times.

There was one exception. A gentleman from a publishing house which primarily produces textbooks rose in support of my point. He stated that, much to their own surprise, his company had found that those textbooks which they made available for free online ALSO had the best sales.

Besides being an interesting story in itself on free information on the net the guest, Charles Vest, president of MIT, as an aside mentioned that when college textbook presses (like the one at MIT) put up free e-text copies of their new textbooks at the same time they published the print version, sales of the print versions went UP.

If it works to increase the sale for things as over priced as the normal college textbook…

sharrukin on February 27, 2011 at 7:54 PM

Two words: Chinese Drywall.

Key West Reader on February 27, 2011 at 7:54 PM

And many may know what a sow’s ear carrying a silk purse looks like. We’ve seen it on the TV and in magazines.

Key West Reader on February 27, 2011 at 7:56 PM

Okay, call me clueless, but what’s with all the honey badger references lately? What did I miss?
DangerHighVoltage on February 27, 2011 at 6:56 PM

Ha! I keep meaning to Google it. I assume it has something it had to do with Wisconsin, the “Badger State”, but the You Tube response, while very amusing, doesn’t seem to solve the puzzle.

Buy Danish on February 27, 2011 at 8:02 PM

Ha! I keep meaning to Google it. I assume it has something it had to do with Wisconsin, the “Badger State”, but the You Tube response, while very amusing, doesn’t seem to solve the puzzle.

Buy Danish on February 27, 2011 at 8:02 PM

It was the video from an Ace of Spades post.

http://minx.cc/?post=312307

sharrukin on February 27, 2011 at 8:06 PM

In short:

Should there be a law limiting the ability of gay men to make women they don’t like look ugly?

kurtzz3 on February 27, 2011 at 8:16 PM

You need to guard against theft in order to spur innovation. There’s a few cases where the enjoyment of doing something is enough motivation, but to permit the investment of serious money for most things requires property protection.

pedestrian on February 27, 2011 at 6:55 PM

I don’t disagree. However intellectual property law should exist independently of it’s effect on innovation. Spurring innovation may be the secondary effect of such laws, but that should not be nor is the primary purpose behind laws protecting intellectual property.

jhffmn on February 27, 2011 at 8:17 PM

Should there be a law limiting the ability of gay men to make women they don’t like look ugly?

kurtzz3 on February 27, 2011 at 8:16 PM

I guess we’ll be finding that out in the coming days. The Boyz always tell the truths

Heh.

Key West Reader on February 27, 2011 at 8:30 PM

Spurring innovation may be the secondary effect of such laws, but that should not be nor is the primary purpose behind laws protecting intellectual property.

jhffmn on February 27, 2011 at 8:17 PM

That is not what the Founders seemed to have thought:

Article I, Section 8: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

For what other reason should the government intervene in people’s use of ideas?

pedestrian on February 27, 2011 at 8:49 PM

Palin/Honey Badger Knockoff 2012

RushBaby on February 27, 2011 at 8:58 PM

, Charles Vest, president of MIT, as an aside mentioned that when college textbook presses (like the one at MIT) put up free e-text copies of their new textbooks at the same time they published the print version, sales of the print versions went UP.

If it works to increase the sale for things as over priced as the normal college textbook…

sharrukin on February 27, 2011 at 7:54 PM

There are going to be special cases like that. Had someone did the study 20 years ago it would not have been true, because no one wants to read a textbook in 24×80 format with 16 colors. And it won’t be true anymore in 5-10 ten years when handheld displays are better than print for most practical purposes. The legal protection of intellectual property has to take the long view.

I would agree that copyrights have gotten out of hand, and it would be nice if patent protection somehow correlated with the actual effort involved, but getting rid of it altogether is not the best way.

pedestrian on February 27, 2011 at 9:13 PM

There are going to be special cases like that. Had someone did the study 20 years ago it would not have been true, because no one wants to read a textbook in 24×80 format with 16 colors. And it won’t be true anymore in 5-10 ten years when handheld displays are better than print for most practical purposes. The legal protection of intellectual property has to take the long view.

Well the format has to met a certain usability standard, but the point remains that letting people see what you are selling helps to make the sale. We see this with free perfume samples in stores, with test drives at dealerships, samples given out in supermarkets, and many other examples.

The music and book industry for some reason seem to think that this sort of basic economics don’t apply to them and yet there doesn’t seem to be any evidence why that should be. If a 1,000 people steal pirated copies of your product and 50 or 100 like it enough to purchase it legally, those are sales you wouldn’t have made otherwise. They strangely seem to think that all of those 1,000 people would have legally purchased their product if the pirate copy wasn’t available and use that as a baseline for computing their imaginary losses.

I would agree that copyrights have gotten out of hand, and it would be nice if patent protection somehow correlated with the actual effort involved, but getting rid of it altogether is not the best way.

pedestrian on February 27, 2011 at 9:13 PM

I am just questioning how useful the protection actually is. The music, book, and movie industries are not doing well and those protection efforts have in no way changed that outlook. They may in fact have contributed to it.

The independent movies seem to be doing better than the Hollywood crowd and the union/corporate monopoly and out of control costs are no small part of why. The authors of books and musical artists don’t really get much of the revenue stream in either case. What we seem to get is some overproduced expensive cookie cutter singer who sounds like every other singer. We are certainly not seeing this innovation by the major corporations.

I don’t think the sort of protection they want is possible and I haven’t seen any evidence that it is effective. The so-called lost revenues may not in fact exist in many cases.

sharrukin on February 27, 2011 at 9:37 PM

letting people see what you are selling helps to make the sale.

sharrukin on February 27, 2011 at 9:37 PM

IP laws don’t change that. They just place control in the hands of innovators to decide how they want to market their product. Less protection simply provides them with fewer options.

There is currently nothing preventing creators from releasing their work without IP protection. The fact that there are works that people want to purchase but are griping about the price simply means there is the potential for someone to fill a lower priced niche, if they so choose.

pedestrian on February 27, 2011 at 9:56 PM

I don’t think the sort of protection they want is possible and I haven’t seen any evidence that it is effective. The so-called lost revenues may not in fact exist in many cases.

sharrukin on February 27, 2011 at 9:37 PM

Well said.

Key West Reader on February 27, 2011 at 9:57 PM

There is currently nothing preventing creators from releasing their work without IP protection.

And those who have done so, as the link I posted shows, have seen increased sales. As to creators, many, perhaps most of those who profit from these laws are not creators at all. Why should a book be protected 70 years after the death of its creator? Whom does that serve? If its actual property then why not an eternal protection?

The fact that there are works that people want to purchase but are griping about the price simply means there is the potential for someone to fill a lower priced niche, if they so choose.

pedestrian on February 27, 2011 at 9:56 PM

And they are in fact going out of business. The music industry, the Hollywood machine, are in economic trouble and piracy has little to do with it.

sharrukin on February 27, 2011 at 10:08 PM

The music industry, the Hollywood machine, are in economic trouble and piracy has little to do with it.

sharrukin on February 27, 2011 at 10:08 PM

I don’t follow the music industry, but I do watch movies. It is getting to the point where the credits take as long as the movie itself. That’s because of competition to produce more compelling content, and like all competition it reduces profit. Lots of people are making money, but that isn’t going to stop the studios complaining that they want more.

pedestrian on February 27, 2011 at 10:17 PM

False labels are illegal.

And it’s all about the name.

Not the fashion.

Which has too little Life and too much insularity.

And insulation, sometimes, too.

profitsbeard on February 27, 2011 at 10:39 PM

Yep, my wife just can’t wait to get some Oscar knock-offs so she’ll look nice while out weeding in the yard…

drfredc on February 27, 2011 at 11:21 PM

I wear blue jeans all the time so… guess I’m a fashion crook too… Damn, and I was tryin to be good.
-

RalphyBoy on February 28, 2011 at 12:01 AM

Leave the Government out of it. They will cause a lot more problems than you think they are going to fix. Regulation is the worst thing for any industry.

old war horse on February 28, 2011 at 12:49 AM

What’s original about Diane Von Furstenberg designs? She makes dresses. She has been making a wrap dress for about a hundred years.

Before she was an egg, people were making wrap dresses.

If she got the law she thinks she deserves. she never would have been able to sell a dress

entagor on February 28, 2011 at 3:34 AM

Agree intellectual property rights are required to at least allow the originator to recover their expenses for getting the property to market. After that its fair game for competition. Maybe, the originator needs to identify how much time it took to get the property/idea to market and protect them only for that long and publish it.

There is another issue is the rule that allows for extending the protection when the originator makes a minor change in the product/idea. Primary example is brand name Pharmaceuticals vs. generic, whereby a company is allowed to change the formula (slightly but change anyway) and they recive another XX years of protection.

MSGTAS on February 28, 2011 at 9:01 AM

Whether you think fashion is important or not is not the issue…it’s whether you think an original idea should be protected, or just eliminate patent law and make it a free-for-all.
Someone spends a life honing a skill (whether you respect it or not), creating a marketing image (whether you think it is important or not), and someone comes along and steals the idea, undercuts you because they don’t have the skills or the ability, or the experience to do what the designers do, is no different then copying an ad, copying a report, it is just plain wrong.
I think fashion is ridiculous in the most part, and the thousands spent on dresses and the focus on them is foolish…but, like any art, it should be protected by people who are the “blood suckers”, the people who steal others ideas.
If you don’t prevent this, then what good is any idea? Any “idea” becomes worthless as soon as the copy cat or “flasher” comes along.

right2bright on February 28, 2011 at 9:26 AM

Without tougher protections, they say designers will have less incentive to create new looks.

OK then, don’t create any new looks. See how that business model works out for ya Di.

Out of curiousity, why now? Designers have been getting ripped off for decades, even centuries. Why only now is she talking about tougher protections?

runawayyyy on February 28, 2011 at 12:30 PM