Running Head: BENEFICIAL PIRACY IN THE FASHION INDUSTRY

Beneficial Piracy in The Fashion Industry

Wayne Li

University of California, Berkeley

College Writing R1A

BENEFICIAL PIRACY IN THE FASHION INDUSTRY 2

Beneficial Piracy in The Fashion Industry

Discussions about the legality of piracy in the fashion industry never end especially in

the past few decades. Nowadays, copying has become a well-known secret in the fashion

industry, but the debate over it is still going on. Many organizations and individuals, such as

Industrial Designers Society of America, have been asking the government to enact new

Intellectual Property (IP) Laws to protect designers' ownership of their work. However, if we

have foresight in the whole fashion industry, the existence of piracy is actually bringing much

more benefits than its counter-effects. Indeed, fashion piracy is not only unstoppable, but one

of the most important reasons that the fashion industry still thrives.

Before we start the discussion about the fashion industry in the U.S., wed better first

look into U.S. copyright protection for elements of fashion design. The term "fashion" refers to

the design (i.e., shape, color, material, and overall appearance) of items, not exclusively

utilitarian, that are created primarily to be worn or carried on the human body [Eugenia

Paulicelli, 2014]. However, despite involving artistic design elements, clothing is always defined

as something utilitarian since it is something necessary for all human beings. Thus, regardless of

whatever designs appear on clothing, it will always result in a "product to wear", a product

which is entirely utilitarian in the eyes of the law. As a result, it is hard to fully protect fashion

designs with piracy prohibition laws, since utilitarian products (like food, furniture, tools, etc.)

cannot receive copyright protection. Fashion designs are only under the umbrella of U.S. Code

2320 - Trafficking in Counterfeit Goods or Services, which, in the fashion industry, only helps to

avoid counterfeits of brand logos, but not designs themselves [Cornell Law School, Legal

Information Institute]. In short, it is a code that protects businesses brands, but not their
BENEFICIAL PIRACY IN THE FASHION INDUSTRY 3

specific products. Because of this loophole, many people copy high-end designers' works and

sell the knockoffs under their own brands.

Although anti-piracy bills have been discussed multiple times in Congress, the U.S. law

for piracy in the design industry is still a work in progress. One failed attempt at reform was the

Innovative Design Protection and Piracy Prevention Act, proposed in 2007, which would have

granted designers a three-year copyright to their original works of fashion design. According to

the bill, new designs would have been eligible to receive protection (with no registration

necessary) as long as they provide a unique, distinguishable, non-trivial and non-utilitarian

variation over prior designs for similar types of articles. [Johanna Blakley, 2010]. Such a

statement, apparently, contains too many loopholes for real-world application. In the past few

decades, the US Congress discussed many bills that would give better copyright protection to

fashion designs. However, although those bills were supported by many official and non-official

organizations, without the support of Council of Fashion Designers of America and American

Apparel and Footwear Association, most of the acts were dead in the water. Because of the

extremely inefficient legislation process, many people, especially fashion designers, have been

questioning governments attitude on protecting designers creations. Congress, of course, begs

to differ. We respect every designers hard-work, announced a representative of the 111th

Congress, And It is our responsibility to protect them and the whole industry [Susan Scafidi,

(2006)].

It seems that government has some interest in protecting designers benefits, but

theres an important reason why Congressional action is so slow --- fashion piracy is just not

stoppable! Nowadays, in a world which of abundant advanced information-sharing

BENEFICIAL PIRACY IN THE FASHION INDUSTRY 4

technologies, people can hardly protect their ideas once published. Indeed, even in the last

century, when the Internet wasnt so developed, fashion piracy had already was unstoppable.

For example, Narciso Rodriguez is a fashion designer who had his own company. In 1996,

Rodriguez gave his friend Carolyn Bessette a white silk bias cut gown, a dress he had been

working on the specific pattern of seaming for years since design school, for her wedding. On

her way to marry John F. Kennedy, Jr., dressed in this fabulous gown, Carolyn was

photographed, and photos spread on the Internet and in newspapers. Eight million copies of

the dress were sold after the photos appeared, but Rodriguez only sold forty-five [Narciso

Rodriguez, 2008].

As there is such rampant piracy in the fashion industry, why dont fashion companies

dont try to stop it? In fact, most retailers, and even some fashion designers, would rather be

knocked-off than to take pirates to court, because of its tremendously high cost in money and

time. Companies with enough money to argue cases in court can hire lawyers to convince

judges that their design is uniquely different from anything else ever made in the history of

fashion and that some other designers work is substantially identical. Even though designers

can show proof of the originality of their design, that still does not guarantee they will win their

case. [Johanna Blakley, 2010]. According to the pricing of company that specializes in piracy and

patent lawsuits, for example, FISH&RICHARSON, hiring a professional team of lawyers means at

least paying 15% of the case value. The more valuable the case, the higher the percentage.

For some high-end designers, they may have to pay even tens of thousands of dollars for a

lawsuit, which isnt quite worth the cost. This is particularly true for the newcomers in the

fashion industry.
BENEFICIAL PIRACY IN THE FASHION INDUSTRY 5

Besides the infeasibility of IP protection by law, indeed, over-strict idea sharing limits in

fashion designing will also stop the whole industry from moving forward, and may even result

in a massive loss of current market. Although people who are familiar with the justification of

copyright protection hold an opinion that without ownership there is no incentive to innovate,

they might be surprised by the critical and economic success of the fashion industry. Nowadays,

fashion is a $1.2 trillion global industry, with more than $250 billion spent annually on fashion

in the United States, according to industry analysts [LeadFerret, 2014]. It is also the second

largest industry in New York, contributing not only enormous economic value but also over

185,000 jobs. The truth behind this is that, New York fashion industry has not only survived

piracy, but it has also thrived specifically because of piracy. Every time a new design is widely

copied, fashions most powerful marketing force kicks in: the trend. Copying makes trends, and

trends sell fashion. A trend creates a fashion mainstream which always leads to new aesthetic

standards. When theres a new trend, people tend to pursue products that fit the mode.

Creating and leading a trend is really important in fashion industry. As a design is copied, it

spreads through and usually down the market. That makes the design less attractive to

early adopters, who seek distinction, not diffusion, in their looks. As they move on, designers

are ready with new creations, some of which are then copied, creating a new trend [Kal

Roustiala & Christopher Sprigman, 2016]. Without piracy, all the benefits mentioned above will

no longer exist.

Many opponents to the "beneficial piracy" theory, whom are mostly individual designers,

sometimes show their "proof" --- some comparison between the number of customers of low-

end retailers who pirate high looks and the actual high-end designers --- to show that knockoffs
BENEFICIAL PIRACY IN THE FASHION INDUSTRY 6

have huge influence on the hard-working creators' livelihood. For example, Emmett McCarthy,

a season two contestant on Project Runway, owns a small shop selling his own designs in New

York City. He presented a record of "Emmett's normal day," which shows that there were only a

few customers in his store, and only two of them decided to buy something. Even more

unfortunately, the only two people who made a purchase intended to copy his designs.

Meanwhile, there are millions of people who go to H&M or Forever 21 every year. Perhaps out

of jealousy and frustration, designers start to criticize the behavior of companies like Forever 21

that get their looks by pirating from the original designers. However, it is not reasonable to

compare high and low end clothing in this way. As Tom Ford, the lead designer at Gucci, said,

"The customer in Forever 21 is not our customer", which indicates that the customers who

shop at high-end stores and those at Forever 21 are two completely different groups of people.

In short, they represent two separate markets. Then what's the point to compare the difference

in the amount of customers at high and low-end stores? Secondly, if one compares the

enterprise value between H&M and Hermes or Gucci (the net worth of H&M is 39.9 billion, and

the net worth of Gucci is 12.7 billion [Forbes, 2017]), both companies, apparently, have great

value. This is because Gucci is already such a huge brand in the fashion industry, with a

dedicated clientele. Of course, Gucci and Emmett McCarthys business are incomparable in

some ways. Piracy may hurt a newcomer to fashion like McCarthy, but it will have little effect

on the mainstream high-end fashion giants. For young designers like McCarthy, perhaps its

better for them to spend more time advertising their brands, creating more unique designs and

increasing their media presence and thereby building value.

BENEFICIAL PIRACY IN THE FASHION INDUSTRY 7

And in fact, in the fashion industry, there already exists a complete support chain for

young designers, which helps tens of thousands of designers like McCarthy each year. For

example, many giant fashion companies like Gucci or Channel offer scholarships to intelligent

young designers each year, helping them to build up their business and create new designs.

This experienced-to-new chain of support is works well in the fashion industry, but is probably

not so familiar for outsiders, which may cause loads of misunderstanding like what we

discussed in the last paragraph. But indeed, these scholarships can eliminate the effects of

piracy on young designers by giving them enough support, both economic and educational.

The fashion industry has an amazingly well-organized, and quite beneficial, piracy chain.

Thus it is reasonable and beneficial that our government shows a slightly "indulgent" but

principled attitude towards piracy in the fashion industry. With an eye on the future, we should

keep the balance between the knockoffs and the support for young designers, so that activity

and creativity in fashion industry will last forever.

BENEFICIAL PIRACY IN THE FASHION INDUSTRY 8

References

Appel, G., Libai, B., & Muller, E. (2013). The short and long-term impacts of fashion knock-offs

on original items. Marketing Science Institute. Retrieved from

http://www.msi.org/reports/the-short-and-long-term-impacts-of-fashion-knockoffs-on-

original-items/

Johanna Blakley (2010). The Costs of Ownership: Why Copyright Protection Will Hurt the

Fashion Industry. Retrieved from

BENEFICIAL PIRACY IN THE FASHION INDUSTRY 9

http://designobserver.com/feature/the-costs-of-ownership-why-copyright-protection-

will-hurt-the-fashion-industry/15078

Susan Scafidi, (2006). A Bill to Provide Protection for Fashion Design. Retrieved from

https://www.gpo.gov/fdsys/pkg/CHRG-109hhrg28908/html/CHRG-109hhrg28908.htm

Eugenia Paulicelli, (2014). Writing Fashion in Modern Italy. Retrieved from

http://www.journals.uchicago.edu/doi/abs/10.1086/683950?journalCode=rq

Cornell Law School, Legal Information Institute. Retrieved from

https://www.law.cornell.edu/uscode/text/18/2320

Narciso Rodriguez (2008). Hearing on Design Law-Are Special Provisions Needed to

Protect Unique Industries. Retrieved from

http://www.fryer.com/HRStatementProductDesignHeld-2-14-2008-C-CorrectedPDF-6-

26-2008.pdf

LeadFerret, (2014). LeadFerret Releases a Directory of Contacts in the Fashion and Apparel

Industry. Retrieved from

https://maloney.house.gov/sites/maloney.house.gov/files/documents/The%20Economi

c%20Impact%20of%20the%20Fashion%20Industry%20--%20JEC%20report%20FINAL.pdf

Kal Roustiala & Christopher Sprigman, 2016. Piracy Fuels Fashion Industry. Retrieved from

https://www.nytimes.com/roomfordebate/2014/09/07/who-owns-fashion/piracy-fuels-

the-fashion-industry?mcubz=3

Forbes, 2017. Retrieved from

https://www.forbes.com/companies/
BENEFICIAL PIRACY IN THE FASHION INDUSTRY 10