What do American cheerleader uniforms have to do with the future of fashion copycats? At the moment, everything. Leading manufacturer Varsity Brands Inc. brought an infringement suit against competitor Star Athletica in 2010 over their copyrighted cheerleader uniform designs – namely, the placement of Varsity’s coloured zigzags and stripes. The outcome of the saga, which should be announced in June 2017, has wide implications for fashion design but I hope it doesn’t have a legging to stand on.
Because they are considered useful items, garments likes uniforms or dresses are outside intellectual property law and not eligible under the U.S. Copyright Act. This is not the same thing as the protections that exist in limited scope for “physically and conceptually separable” items and features, specifically belt buckles, jewellery, textile patterns and lace designs (copyright registration has been available for these since 1954).
By my count, this is the seventh attempt to expand design protection in North America in recent years. The last was in 2012 with the failed Innovative Design Protection Act, which was a proposed bill adding fashion apparel to U.S. Code Title 17 (Copyrights). I have always been against expanding protection of the expression of ideas in the useful arts on the principle that little in apparel design is true innovation, but also because of its untenable scope and consequences.
Varsity contends that the current interpretation of “physically and conceptually separable” should include the graphic design elements of its cheerleading garments. In this particular case, the practical interpretation has stymied the lower courts with wins, appeals and reversals. Now, thanks to a petition from respondent Star Athletica, the issue has made its way to the highest chambers – the U.S. Supreme Court. Both sides spoke before the justices for an hour in late October. But forcing an explicit interpretation risks losing what little design is already protected by law. The Supreme Court will be setting a new precedent whichever way it rules. If it overturns the previous ruling, a clarified interpretation will repeal the protection that exists. If it doesn’t, the court will provide more ammunition for designers and brands who can afford to register copyrights and prosecute lookalike designs. It would be the Code of Hammurabi, but for hemlines.
While we won’t know the outcome until next summer, the argument about stripes and chevrons as relating to art, function and creativity seems far from airtight.
One of the convoluted thicket of arguments put forward in the amicus curiae brief by Fordham University’s Fashion Law Institute and expert designers like Narciso Rodriguez and brands such as Proenza Schouler argues that some garments can be closer to art than function, meaning “closely related to sculpture,” citing examples from Charles James to Rei Kawakubo. They also invoke the work of fine artists Klee, Duchamp and Mondrian.
Is fashion art? The question has been asked repeatedly this year, from The Neon Demon and the BBC’s British Vogue documentary Absolutely Fashion to Amazon series The Collection and the documentary about the Met’s Costume Institute exhibition and gala, The First Monday in May. In the mix here, too, is the idea of fashion as an information-bearing good and a useful art that expresses not only the creativity of its author but of its wearer. In First Monday, Karl Lagerfeld himself says, emphatically, that clothing is not art.
Another argument being made in this case is that the legal interpretation of fashion design in the U.S. is fundamentally reductionist and belies the “persistence of deep-rooted cultural prejudices no longer tolerated in other contexts” as a “feminine, frivolous, and inherently irrational domain, the province of women and gay men.” That’s one point I don’t dispute, but I don’t see what it has to do with copyright.
The suggestion is that the fashion industry has substantially changed because visual literacy is rapidly expanding. But what’s accelerated is production pace and appetite. Fast fashion has run rampant and is a systemic problem, but for reasons beyond the remedy of intellectual property (waste and supply-chain labour issues come to mind). It’s not that design is so widely available we feel entitled to it, though that too has a certain inevitability. With expanded copyright, there are also wider consequences like the piracy paradox, inhibiting true innovation from designers who might commit unwitting infringement or be burdened to legally research and clear the creative aspects of clothing they design, defend and/or prosecute (all of which eventually increases the cost of a garment and its price to consumers).
In the E.U., fashion designs are protected on the grounds that they’re considered to have intrinsic creative value; they carry an automatic registration and, in theory, protection for three years (the length of time to reasonably profit from unique creative expression, much in the way a patent grants a period time to benefit commercially from a new invention or discovery). Among the most high-profile cases to date, in France in 1994 Yves Saint Laurent won a copyright ruling and damages from Ralph Lauren when the American brand was found to have imitated and sold a very similar (but not identical) black YSL tuxedo halter dress from the late 1960s. Even there, commerce seems to have been the real point: Whenever I review the particulars of that case the logic is faulty. At the time, YSL president Pierre Bergé commented that the copying of design by the mass market didn’t particularly bother him but that he took exception when it was from a design peer (read: competitor).
Some of it has to do with fairly profiting from one’s originality, a word I don’t use lightly. To copyright design, there’s the matter of proving non-trivial variation over previous versions. Remix culture appropriates, interprets or flat-out revives forgotten and historical designs, which trickle up, down and around.
Overt and strategic copying is opportunistic and an affront to creativity – but that’s moral, not legal. Creativity is not the lofty modus operandi of fashion; where laws do exist, principle seems to be the luxury of the few, usually luxury, brands that can pursue satisfaction. Little under the sun is new in form, and since I don’t believe that fashion is art either, what form there is should always follow function.Report Typo/Error