Designer "copyrights" & my totally wild idea

If you read Fashionista, you're probably familiar with their Adventures in Copyright series, which, while intended to point out how mass-market retailers like Forever 21 and Steve Madden rip off designers, often serve as unintentional shopping guides for getting the look for less. Of course, while these posts are somewhat noble in intention--calling out mass retailers for being unimaginative, protecting independent designers--the very label of the posts fails to acknowledge the fact that, as of now, the design of necessities such as clothing and shoes is actually not copyright-protected in the U.S. (Unique prints and logos are copyright protected, however, which explains why selling--and buying--fake Chanel and Louis Vuitton bags on Canal Street is illegal.) Designers are, however, challenging the laws. The CFDA has led the fight for piracy laws; Trovata has become the latest designer to settle with Forever 21 [subscription required] after a mistrial with a deadlocked jury; and now Alexander McQueen is suing Steve Madden [subscription required], a case which, if precedent is any indication, will likely be settled out of court.

But it was this post about Isabel Marant booties yesterday on Fashionista that really got me thinking. These boots, originally seen on Jak & Jil, are incredibly drool-worthy and if I were actually able to get my hands on a pair, I might even shell out full price for them. But the problem is, they are sold out everywhere. While many designers are hyper-aware of their brand identity, Marant is super-controlling of hers, to the point that she does not allow her designs to be sold online, and thus supply will never quite meet demand, another way in which designers control their image--by ensuring that not everyone can attain it. (The good news, however, is that Isabel Marant is opening a store in Soho next February [subscription required], making her wares at least a little more attainable.) So while I can't find a pair of the true Isabel Marant boots to save my life, as the Fashionista commenters point out, Steve Madden, Jeffrey Campbell, Rose Gold, and even Barneys Co-Op has ripped off the design, to varying degrees of success. While price is certainly a big factor here--this is America, after all, champion of capitalism as well as "the look for less"--availability is one too, and you can't ignore the fact that Marant is missing out on a lot of lost revenue.

So here's where my totally wild idea comes in. After World War II, when the couture business had been interrupted, couturiers were eager to get their names back out into the world, so American department stores would send representatives over to Paris for the fashion shows. The department stores would then, with the couturiers' blessing, reproduce the runway looks and sell them, paying the couture houses a fee for the privilege of doing so. This system was in place well into the 1970s, when couturiers began to experiment heavily with licensing and ready-to-wear (Yves Saint Laurent Rive Gauche, for example, was considered a diffusion line in its day, as YSL was first and foremost a couture line).

Now, what if a system like this were put back into place? For example, if Steve Madden wanted to produce a $150 version of Alexander McQueen's (sold out) $1,200 booties, he could pay McQueen, say, a $50,000 licensing fee. McQueen's name and logo could not be used anywhere, such as the law is today, but he would still profit from the sale of the hundreds, if not thousands, of pairs Steve Madden would be sure to sell. A fee of that size would greatly benefit independent designers, who also might not have the resources to fight a mass-market retailer in court--think of how many times you've seen Anna Corinna's City Tote knocked off. Of course, I realize my idea is flawed. For one, it would require total honesty on many retailers' parts. Considering how much they spend on legal representation, I have a feeling Forever 21 would comply; smaller companies would likely balk at the cost and thus try to fly under the radar. (This might be alleviated somewhat with a sliding scale based on production run, company size, retail price, and so on.) Another problem is that there would be the potential for even more lawsuits than there are now: designers suing those who knock off but don't pay the fee; and, as a result, unqualified juries and judges having to decide what is and isn't a knockoff based on design details they might not even be able to discern. Finally, as I said earlier, designers are fiercely protective of their brand image, and if you can find an incredibly watered-down version of, say, a Balmain jacket at Wal-Mart, well, then what does that say about Balmain? Of course, there are many obvious differences between a $5,000 jacket and a $50 one, and as I have argued many times before, most people who are buying knockoffs probably can't afford the original (especially if they're shopping at Wal-Mart). Then again, think of all the designers who've hopped on the Masstige bandwagon.

My solution is not a perfect one, but at least it's a starting point for a discussion--other than of the "Oh my god, knockoffs are so tacky" vein. I do believe that designers should be compensated for their original designs, but I also believe in free-market capitalism. And if our Nobel-Prize-winning president has taught us anything, it's that sometimes you need to compromise to get things done. So maybe after Obama fixes our healthcare system, the economy, and the war in Afghanistan, he can focus on the fashion industry.


workhard said...

Those shoes are superb

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wilson-ette said...

I just don't get it - why is it so hard for everyone to acknowledge that no one should have to pay licensing fees to a designer to produce a copy of their item, because it's not an original piece!! Was Isabel Marant really the first person to combine ankle boots with studs, buckels, and a fold-over cuff? No way. The only reason people feel that she should have the rights to the look is because she's higher up on the designer hierarchy. Steven Madden might have done a copy right after her, but it doesn't matter about the timing - copying is always copying, no matter who does it. Either you're for or against it - and if you're against it, that necessitates that you would like to see every single designer shut down their business until they can think of something completely original. Good luck with that.