Fashion designers hail prospect of copyright protections

It’s what an awards show should be: Short speeches. Few categories. A succession of suits and sequin sheaths designed on Seventh Avenue.

When the Council of Fashion Designers of America holds its annual CFDA Fashion Awards, often just called the “Oscars of Fashion,” it’s never a prime-time spectacle riddled with bungled jokes and show tunes. It’s a private affair for fashion’s creative crux, a celebration of designers and industry stalwarts.

But bring in Lady Gaga, and the cameras roll out. Honored Monday with the organi­zation’s Fashion Icon Award, she wore a burlesque-inspired ensemble by Thierry Mugler, complete with a teal Anna Wintour bob and a studded, spiked thong. As always, she seemed to reference other artists, a tactic she has perfected in both song and style, and a fitting symbol of what’s become the battle cry of American designers in recent years.

Fashion may borrow, but it should never, ever copy.

Next year, the CFDA will celebrate its 50th anniversary, and the group of 375 designers could receive its largest gift from Congress. In December, the Senate Judiciary Committee unanimously passed a bill that would provide three years of copyright protections to what it calls “unique” and “distinguishable” fashion designs.

Those adjectives are hard to attain in the fashion world. Most pieces — trench coats, tuxedos, black sheaths — are so ubiquitous that they rarely qualify as “innovative.” But under the bill, a designer could prove that a mass-market retailer copied a novel design by showing that the copy is identical, so as to be mistaken by consumers for the real thing. So copies of, say, Catherine Middleton’s wedding gown on the rack at Macy’s probably wouldn’t qualify, since the design wasn’t particularly innovative and few would mistake a copy for the original Alexander McQueen design by Sarah Burton. But a shoe with a seven-inch Lucite heel shaped like an octopus might be original enough. The bill may seem tedious, but for designers, the question of having rights to original designs is important to both business and morale.

Since 2006, the creative and manufacturing sectors of the fashion industry have warred over the language. The American Apparel and Footwear Association (AAFA), which represents more than 850 American manufacturers and suppliers, argued that earlier versions of the bill would drive up prices for consumers. “We were concerned that broad legislation would harm consumers and be a recipe for lawsuits, lawsuits, lawsuits,” said Kevin Burke, president and chief executive of the AAFA. “Were we going to be creating a monster?”

But the bipartisan compromise introduced last year by Sen. Charles E. Schumer (D-N.Y.) now has the support of both the CFDA and the AAFA, which he sees as a rare feat in Washington. “These guys weren’t talking to one another two years ago,” Schumer said. “This took a lot of contentious meetings. . . . It got pretty heated, but we realized that if nothing was done, everybody would lose.”

For consumers, the bill could affect those who want to buy an exact copy of an Alexander Wang dress at the mall for $14.99. Some opponents think the bill will hinder choice; proponents think it will spur variety. Some point out that European fast-fashion chains such as H&M and Zara already abide by a copyright regime that protects original designs.

Most creative works — photographs, watercolor paintings, iCloud entities — are protected under U.S. copyright law. But since fashion design falls into that murky legal category of utility, i.e., clothes are useful to humankind, it doesn’t carry the same protections. Yet.

With the bill’s impending passage, fashion design could finally enter that realm of creativity that lawyers and philosophers often classify as art. Does this mean, after years of furious debate in lecture halls and SoHo design studios, Washington — the city rarely celebrated for its fashion prowess — will finally issue a ruling on whether fashion is art?

“I’ll leave that to greater minds than myself,” said Schumer. “Fashion is a major industry in New York, and the future of many of our large cities is intellectual property. If we don’t protect it, that kind of high-end value we gain gets lost.”

So much for the symbolism.

But some legal scholars do think fashion is receiving a congressional stamp of approval. “In early hearings, so many representatives started their remarks with, ‘Well, as you can see, I don’t know anything about fashion,’ ” said Susan Scafidi, the director of Fordham Law School’s Fashion Law Institute, who testified in favor of the bill. “Yes, it’s a trillion-dollar global industry, but people are starting to think of fashion as something more. It’s a cultural moment that’s coming together in Congress.”

Many designers pushing for the bill, oddly enough, are reluctant to claim it could elevate fashion’s cultural relevance to lofty heights. Diane von Furstenberg, president of the CFDA, simply views its passage as smart business. “I don’t know that fashion is art. It’s design,” she said. “But it has value and we have to protect it. It’s intellectual property.” This, coming from a woman whose signature wrap dress hangs in the Metropolitan Museum of Art’s Costume Institute.

In recent months, the Fine Arts Museum of San Francisco and the Philadelphia Museum of Art hosted exhibitions honoring international designers of the past Cristobal Balenciaga and Roberto Capucci, respectively. With exhibition names like “Art into Fashion,” prominent national museums have already begun elevating fashion’s cultural relevance.

“You look at the McQueen exhibit at the Met and it’s breaking records,” said Steven Kolb, executive director of the CFDA. “You get the sense that this guy was a real artist. We’ve finally turned the corner and recognized that clothes aren’t just about covering up, and this law certainly gives fashion its due.”

Whether or not the bill passes in time for next year’s awards, the CFDA plans to celebrate. “We’ve already fixed the problem just by raising the issue,” said von Furstenberg. “People used to say ‘Oh, it’s so elitist.’ It’s not. Mass merchants have started to use designers. Everyone sees the value of originality now.”

 
Read what others are saying