Legally chic: Should fashion designs receive copyright protection? – Local Asian American experts, designers weigh in on the debate

By Evangeline Cafe
Northwest Asian Weekly

Image by Stacy Nguyen/NWAW

Laotian American designer Banchong Douangphrachanh buzzes with excitement as she prepares to launch her 2011 fall/winter menswear collection.

“It’s gonna go to the trade show in February. Right now, I’m going the rounds, meeting buyers and networking with boutiques,” she said.

Her Regatta clothing line combines sophistication with functionality. She mingles sleek, conservative pieces with bold organic shapes and even incorporates performance fabrics such as neoprene and Gore-Tex.

“My line is definitely Northwest-inspired,” she said. Although the Capitol Hill-based designer has no troubling finding inspiration, translating her ideas into wearable apparel requires a lot of hard work.

“It takes a lot of drawings — it can be hundreds or thousands of drawings — and then, I have to play with the shape and the draping to make sure everything works together,” she explained.

Despite the significant amount of creative energy that many fashion designers expend, the United States generally refuses to extend copyright protection to clothing.

While courts have held prints, graphics, and sketches copyrightable as pictorial works, the same courts have considered apparel not copyrightable because of their utilitarian or “useful” nature.

Banchong Douangphrachanh's clothing from the Regatta line. (Photo by AllKlier)

In other words, the law generally does not protect designers like Douangphrachanh from copyists who wish to make and sell cheap knock-offs of original designs.

While Douangphrachanh fully supports extending copyright protection to fashion, she recognizes the difficulty in enforcing this.

“Of course, it’s like, ‘Did you rip me off?’ But at the same time, I realize I’m not the only original person in this world. There’s a lot of overlapping of ideas. I think you should at least give credit if you copy someone’s work,” she said.

“Fast-fashion” companies, such as Forever 21, have capitalized on the United States’ denial of protection by rapidly producing and selling cheaper versions of high-end designs. These companies have established multi-billion-dollar empires. However, these business practices have been met with much criticism.

Intellectual property law attorney Janet Kim Lin would like Congress to pass legislation that extends limited copyright protection to fashion design. She believes that creators of original pieces deserve some specialized protection — not as a reward, but as an incentive for further innovation.

“The main point is that you’ve got to motivate creation. That’s the constitutional basis for protection,” said Lin, referring to Article 1, Section 8 of the Constitution. The Copyright and Patent Clause empowers Congress to enact laws that “promote the progress of science and useful arts” by granting limited protection.

“The problem with fast-fashion companies is that all of their efforts are devoted to copying. They’re not really creating,” said Lin. “All that energy could be directed toward creating new designs that enrich the public domain.”

Lin believes that legislation extending copyright protection to clothing would hold fast-fashion companies accountable by encouraging them to license designs and pay a fee, or to create their own original work.

Banchong Douangphrachanh's clothing from the Regatta line. (Photo by AllKlier)

The European Union, Japan, and India have enacted laws that provide protection for fashion. Over the last several years, U.S. lawmakers have pushed for legislation that would grant similar protection. Last August, Sen. Charles Schumer (D-NY) introduced Senate Bill S.3738: the Innovative Design Protection and Piracy Prevention Act (IDPPPA). The bill sought to grant three-year copyright protection for original fashion designs that provide a “unique, distinguishable, non-trivial, and non-utilitarian variation” over prior designs. The IDPPPA passed the judiciary committee unanimously. However, the Senate failed to vote on it by the end of the session, and the bill effectively died.

Binh Nguyen, founder of QuestKids Clothing, finds such legislation unnecessary. He regards fast-fashion providers as “smart business people” who offer affordable fashion alternatives for frugal fashionistas.

“I’m all about the consumer,” said Nguyen. “If a company is going to recreate a dress that Gucci made for Julia Roberts, I don’t think they should get in trouble for that. That’s how fashion works. You go from high fashion, and it trickles down to the consumers — those are the people who actually drive the industry,” he said.

Custom bridal and formal wear designer Kiko Rodriguez, founder of Kiko Couture, also opposes extending copyright protection to fashion.

“Fashion is different than music. Everyone in the fashion industry follows a certain trend, treatment … and these are all inspiration,” said Rodriguez. “Small businesses and designers will hurt because the big companies will have control of the market,” he said.

Image consultant and artistic director Rebecca Luke, founder of les Egoistes LLC, agrees that wealthier and more established designers would benefit from fashion copyright legislation. However, she admits that finding a solution to the “immediate knock-off scenario” would be a trying task because it would be difficult to prove infringement.

“This would hurt the small designers who may only be influenced by the natural fashion cycle that has existed for centuries,” said Luke. “Historically, fashion design has been inspired by previous designers, art, costumes, architecture, and interior design … it will be hard to say what came first.”

Lin disagrees, however. She believes that plaintiffs will not have difficulty proving infringement simply because the art is embodied in an article of clothing.

“There is already jurisprudence as to what constitutes copyright infringement in the context of music and film. I think that with the creative arts, there will always be a spectrum. … But the courts have dealt with it, and if the legislation passes, they’d have to apply that same analysis to fashion design,” she said.

Dr. Jaeil Lee, associate professor and director of Clothing and Textiles Program at Seattle Pacific University, recently began research on the possibility of making fashion copyrightable. She is collaborating with University of Washington Visiting Professor Dr. Yoon-Jung Lee to assess the advantages and disadvantages of protection, in hopes of finding a workable solution.

“We really want to see the perceptions of the different professions right now, from fashion merchandisers to fashion designers, to vendors,” said Dr. Jaeil Lee. She believes that some form of protection is warranted.

However, the parameters will be tough to draw.

“There must be guidelines, to make all parties a little bit happier,” she said. “But the details are very important, and it should be really carefully thought through. There’s kind of a gray area in many cases. If you copy a style, but use a different fabric, or kind of tweak it a little, is that still infringement? It’s hard to say.”

Dr. Jaeil Lee said that the copyright debate boils down to social responsibility on behalf of all players involved.

“Once we get our research going, we hope to get our students involved. Soon, they’ll be getting a job in the fashion industry, so it will be important to understand the fine line between getting inspiration from another person’s design and engaging in what could one day be infringement. It’s all about ethics,” she said.

While fashion may not be at the top of Congress’ agenda, whatever materializes from this debate could affect a lot of people, including consumers.

“Fashion is actually the largest creative industry — bigger than music, film, and books combined,” said Lin. “It’s a $200 billion industry. Everybody buys clothes, whether it’s from Wal-Mart or haute couture … so it’s a pretty relevant issue.”

As Douangphrachanh puts the finishing touches on her fall/winter clothing line from her Capitol Hill studio, she simply hopes that any possible change in the law won’t get in the way of her dreams.
“I’m totally for copyright protection for fashion, but I know the danger. If you have it out there, I know the big companies would have the money and resources to pursue infringement, but the smaller companies won’t have the money,” she said.

“I just hope these conversations fuel a solution — some sort of middle ground.”

Forever 21 and H&M did not respond to interview requests. ♦

Evangeline Cafe can be reached info@nwasianweekly.com.