Are knockoffs good for the Fashion industry - Research Paper Example

? Are knockoffs good for the Fashion Industry? No: Table of Contents Are knockoffs good for the Fashion Industry? 3 Introduction 3 Fashion Industry of the United States of America 4 US Copyright Protection Act 4 Growth of Fashion Designing Industry 5 Fashion Bill by Schumer 7 Lawsuits 10 Protection of Fashion Designers 11 Conclusion 12 References 13 Are knockoffs good for the Fashion Industry? Introduction The artistic world and art lovers are well aware of the greatest artists of the century, namely Halston, Lagerfeld, and de la Renta in connection to what they did and what they created. It was greater than art as they provided the reason for living a life you want to live as per your style (Willet 2006). With the passage of time, fashion has turned into the form of applied art. In yester years, one was just putting the clothes on the body aiming at to cover and keep the body warm. According to the old notion, fashion was craft and not an art. Today the concept has changed. According to the new definition, fashion is a form of creative expression and is very near to wearable art (Willet 2006). Nowadays, fashion industry is facing copyright problems around the globe. Take the example of any developed country where it is difficult to protect garment industry from copying fashion. If we look at it from the angle of law, it means that unless garment industry falls into one of the common law category, it cannot be protected. Garment industry portrays artistic craftsmanship. Therefore, case law disfavor cited sort of argument as a string of cases. In this respect, we may refer here to the case of Merlet v Mother Care. The “artistic" term in the copyright world is not familiar. Hence, a judge requires considering it on aesthetic merit of the work. Under the mentioned circumstances, it is possible to protect fashion related works from the purview of copyright (Willet 2006). Fashion Industry of the United States of America Contrary to European Union, there is no sui generis design regime in the United States of America; therefore, copyright is the only legal framework to protect original fashion from being stolen. As far as the creative elements and apparel designs are concerned, they fall beyond the ambit of US copyright law since garments and their accessories are treated as ‘useful articles’, hence remain unprotected. We all agree on the point that clothing is an inherent function, so copyright law has no access on the look and cut of a dress. However, the patterns or the prints can be challengeable in accordance with the mentioned right. US Copyright Protection Act The US copyright protection act is applicable to an expressive original work of a designer affixed visibly in an outfit. It provides exhaustive eight categories of the work of craftsmen against which a copyright act is applied. The perusal of the said act indicates the absence of fashion designs amongst the existing list. It means that both apparels and fabrics designs fall within the ambit of copyright protection act. If we may go through the doctrine of useful articles, it is identified that most apparel designs do not fall within the category of copyright protection act. The other side of the coin is that under EU design law, styles in fashion are specifically excluded from the protection of copyright list (Peter 2007). In order to invoke the jurisdiction of competent court of law under the copyright act, it is incumbent that the work displays originality. The mentioned act debars similar designs, common stripes and colors because they lack originality. It is clear that the copyright protects the artistic side of the product and has nothing to do with its functional aspects. However, where the originality in apparel designs or fabric designs is proved, he or she will receive punishment from the court of law under the copyright act (Keymeulen 2012). Before punishing the designers for copying the designs of other designers, several tests are to be conducted to determine the similarity. Hence, it is difficult for the court of law to clearly address this issue in their judgment. The Supreme Court in many of its judgments considered copyrightable works as mild being the amount of creativity to satisfy the requirement of originality (Peter 2007). Growth of Fashion Designing Industry The other view is that growth of fashion industry relates to knockoff industry in terms of jobs, consumption and stimulating the economy. By all means, this is the American way. It is interesting to note that the American fashion industry allows copying without legal consequences. As per the common practice, the American apparel industry is not protected by copyright laws because the law does not cover something that relates to useful function (protecting our bodies from weather by wearing clothes) (Baumann September 13, 2012). Copyright laws are there to inspire creation in the fields of literature, music, poetry and film that are unique or original in some way. It is agreed that fashion industry has become one of the largest industries to contribute in the economy since most of the creations are based on re-working of earlier elements. Music or literature can follow the suit of earlier thoughts. We all agree that music is the combination of just seven notes, resulting in millions of musical products in different languages. The USA law treats the matter the other way round. Piracy in films and fashion industry has the lasting impacts on both industries (Baumann September 13, 2012). Los Angeles in the year 2005 registered a loss of USD 283 million in terms of tax revenue as well 100,000/- jobs associated with the industry. The creation of originality is not an early task. Artists put in hard work and years of their life to create something new to make it accessible to the masses. If creation of an artist is stolen by somebody else, it means the stealer deprives the creator from his due rights. In the United States of America, piracy is a crime. However, in some other countries it is very difficult to raise a question about the standards of originality and uniqueness (Baumann September 13, 2012). The ultimate beneficiaries of the products are users of the products who enjoy classical designs at a lower rate. It is a fact that copying the fashion generates competition amongst the competitors in the industry which leads to curtailment of profit margins of the manufacturers, retailers and the sellers in view of the substantial market share. So, the selectors of the fabrics should be careful about selecting their outfits. According to Samantha Jones, you should not get rid of the menace of a fake label on other products offer for sale ("Europe Vs US : fashion wars " 2012). The study of the fashion industry of the United States of America indicates that it generates billions of dollars annually by organizing fashion shows to attract fashion mongers. The American brands and the European brands create a cut throat competition amongst the buyers of China, Brazil, Russia and few other emerging markets. As per the survey conducted by The Digital Luxury Group, European brands have an edge over the American brands in terms of their voluminous sales in the mentioned countries and the new markets ("Europe Vs US : fashion wars " 2012). As far as China is concerned, it remains one of the essential luxury markets of the World. There are many fashion designs, which create a niche in the Chinese markets. Further, Chinese markets are going through the phases of rapid transformation. Therefore, to find out a place in the Chinese market, the off shore companies have to revisit their brands to make them more attractive for the buyers keeping in mind the recent slow pace of sales of their products ("Europe Vs US : fashion wars " 2012). The ups and downs in the sales of European and the American products attributes to quality, rates and style of the products that are put on for sale. The market share of European Countries is far ahead of American market share due to rapidly changing style and fashion ("Europe Vs US : fashion wars " 2012) ("Europe Vs US : fashion wars " 2012). Fashion Bill by Schumer To protect New York fashion industry, Senator Schumer’s contributions are praiseworthy. He is of the view that the Fashion Bill, which he introduced, would be of great help in protecting the New Yorkers from knocking off the products, which of course gives an edge to over overseas competitors ("Innovative Design Protection Act Reintroduced" September 12, 2012). The efforts of the mentioned Senator will play an important role in protecting approximately 200,000/- jobs associated with the fashion industry. It is agreed by all stakeholders that the bill in question is the necessity of fashion industry in terms of Protection. The mentioned bill aims at to thriving business ("Innovative Design Protection Act Reintroduced" September 12, 2012). The other day Senator took a step ahead and reintroduced the cited bill in collaboration and consultation with key stakeholders a) Council of Fashion Designers b) American Apparel & Footwear Association and c) Net Coalition - not only to save the fashion industry of New York, but the fashion industry of the whole United States of America from copying menace. The legislation in force provides limited intellectual property protection that relates to original and extremely distinguishable design. The reason of reintroduction of said bill due to failure of seeking a vote on previous bill from the Senate after being passed out in front of the Judiciary Committee by the cited Senator ("Innovative Design Protection Act Reintroduced" September 12, 2012). Reportedly, New York City today is considered a hub of American Fashion and Style, playing key role not only in creating sizeable job markets for the job seekers, but in generating billions of dollars for the national kitty. The said bill is the need of the hour since knockoffs are eating up America’s fashion industry, and the overseas operators are reaping the benefits of lack of protective measures for the native industry. The newly introduced bill will protect the American Fashion Industry from the copiers. It is assured by the Council of Fashion Designers of America (CFDA) that American designers will enjoy the same protection as other fashion designers of the industrialized world ("Innovative Design Protection Act Reintroduced" September 12, 2012). If we look at the fashion industry of New York, which gives employment to hundreds of people and generates tax revenues in billions to the national exchequer, we cannot deny its contribution in economic growth of the country. As per a survey report, nearly 800 fashion designing companies are housed in New York City, which is more than double of Paris fashion designing companies. In New York City, fashion weeks generate USD 466 million twice a year with the help of visitors ("Innovative Design Protection Act Reintroduced" September 12, 2012). The mentioned income is in jeopardy keeping in view the pilfered designs. If congress will not act promptly to save the industry from the pilferers, there are strong chances of losing of hundreds of jobs and earnings will go to European Countries and to Japan. The aforementioned legislation strikes a balance between the jobs and the innovation. Under the said legislation, only the unique fashion designers will be protected. The said legislation will not address the issue of colors and patterns in determining whether a design is protected or not. However, the protection takes place when a design is made public and lasts for a period of three years. Creation of designs before promulgation of current bill will be considered public property and cannot be protected ("Innovative Design Protection Act Reintroduced" September 12, 2012). The bill determines the liability. In other words, there is no liability for an ongoing product at the defendant’s end, and also there is no liability for someone who makes a copy of it for his or her personal use. It also protects retailers and the consumers from any liability. Additionally, the aforesaid bill is tabled by Net Coalition representing majority of global Internet and technological companies, to mitigate the secondary liability ("Innovative Design Protection Act Reintroduced" September 12, 2012). The hitch in the bill is that the burden of proof lies on the shoulder of plaintiffs in order to limit the costs of litigation. The bill requires meaningful pleadings of the case by the plaintiffs keeping in mind that misrepresentation may attract harsh penalties. Despite the strong opposition of other key fashion stakeholders, Schumer will continue his endeavor wholeheartedly to ensure that above legislation will see the light of the day ("Innovative Design Protection Act Reintroduced" September 12, 2012). Lawsuits In the United States of America, lawsuits on the fashion designs are a common phenomenon. In order to save time, energy and money for litigation, Congress is finally ready to give designers copyright protection. The Innovative Design Protection and Piracy Prevention Act if legislated would give three years to copyright protection to fashion designs (Novellino September 12, 2012). Measures that are taken to protect the fashion industry of USA would give strong message to those who are in favor of intellectual property protection. Now, the ball is in the court of Congressional block and it has been hovering around the legislative body since 2006. No one can tell how long it would take to seek consent of lawmakers before forwarding it to upper house of the legislative body via circuitous route. If we look at fashion designing historically, we may find a limbo between the design patent, trade mark and copyright (Novellino September 12, 2012). Here, the question arises whether the utilitarian view point of fashion designs can be parted from the creative work of physical separable test or not. The test in itself creates hurdles, requiring that one has to conceive an idea to separate from useful ones. The courts in their rulings held that clothing function cannot be a part of creativeness; hence, it does not require copyright. Few members of the Congress as well as many designers are in doldrums whether it is a valid assessment with regard to clothing at this time and age if taken into account the easy availability of the designs on the internet or not (Novellino September 12, 2012). Protection of Fashion Designers It would not be out of place to mention that Council of Fashion Designers of America (CFDA) headed by Diane von Furstenberg favoring stronger protection of fashion designs for so many years is without any administration. To protect upcoming designers, allowing of trademark should be an essential requirement to discourage knockoffs by the cats. The designers put in hard work for their innovative creations, and no other person or company should be able to cash the premium of genuine fashion designer’s work without his/her permission (Fabio October 2011). The famous fashion designer and co-founder of Proenza Schouler, when testified by the Judiciary Committee on Intellectual Property, Competition, Internet and online access to 3-D images, shows his concern about transportation of ideas to Chinese Copiers even before it makes its in path on the roads, which causes severe economic jolts (Fabio October 2011). There are so many scholars and experts on fashion designing who while being testified before the competent committee, encourage new designers to provide simple replica for their consumers and the industry. Law Professor Christopher Sprigman of University of Virginia was of the view that “it would cause meaningless litigation,” and according to UCLA Law Professor Kal Raustiala, the copyright protection would result in fighting on this issue who started this trend (Fabio October 2011). In the eyes of another expert, copying fashion designs in fact generates the demand and creates interest amongst fashion lovers towards purchasing new sorts of fashion styles thus creating great opportunity for sales. The current system provides a way out to the masses to purchase affordable outfits who cannot afford to wear known designer’s clothes and accessories. It is an admitted fact that for the last 70 years, the American fashion industry has a thriving business despite all odds (Fabio October 2011). Conclusion We have gone through the articles on American Styles and Fashion Designing in detail and observed that large numbers of people are engaged in this industry, and the industry generates billions of dollars for the national economy. The dark side of the coin is that the industry has to face the menace of copying the fashion design and style by the stealers thus depriving the creators of their due rights. It is the need of the hour that American think tank should resolve the issue speedily and support Schumer Bill on the subject in order to save its fashion industry from piracy, losing of thousands of jobs and considerable amount of profits that are being siphoned off by the copyists. The promulgation of mentioned bill will definitely give a substantial boost not only to the fashion industry but to the economy as well. References Baumann, Susana. "Knockoffs handbags, a big push to the fashion industry?." September 13, 2012. Accessed November 18, 2012. http://www.voxxi.com/replica-handbags-fashion-industry/. Council of Fashion Designers of America, "Innovative Design Protection Act Reintroduced." September 12, 2012. Accessed November 18, 2012. http://cfda.com/the-latest/innovative-design-protection-act-reintroduced. Fabio, Michelle. "Are Copyrights in Fashion?." October 2011. Accessed November 18, 2012. http://www.legalzoom.com/intellectual-property-rights/copyrights/are-copyrights-fashion. Fibre2Fashion.com, "Europe Vs US : fashion wars ." 2012. Accessed November 18, 2012. http://www.fibre2fashion.com/industry-article/paidArticles/4471.asp. Keymeulen, Eveline V. Copyrighting couture or counterfeit chic? Fashion design: a comparative EU–US perspective. Journal of Intellectual Property Law & Practice, 2012, Vol. 7, No. 10: 728-737. Novellino, Teresa. "This fashion design lawsuit may be a trend." Upstart Business Journal. September 12, 2012. Accessed November 18, 2012. http://upstart.bizjournals.com/companies/innovation/2012/09/12/lululemon-suit-brings-trademark-to-fore.html?page=all. Peter, K. Yu. (2007). Intellectual Property and Information Wealth: Copyright and related rights. US: Greenwood Publishing Group. Willett, Shirley. "Pattern Design & Engineering Began the Fashion/Apparel Industry in Boston at Turn of the 20th Century". 2006. Accessed November 18, 2012. http://www.shirleywillett.com/historyoffashion.html. Read More