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Friday, 28 August 2015

Fashion Law and Debates - from Balenciaga to DVF

I see IP everywhere. Everywhere.  Including a reasonably trashy beach read in Spain. El sigh.

Flicking through my sandy copy of El Pais, I noticed a familiar face.  That of IP and Fashion scholar Susan Scafadi, standing next to fashion designer Diane Von Furstenberg (DVF).  There it was, three glorious pages (en espanol) detailing the growth of Fashion Law, in particular that of IP and contract law.  No longer the last dress on the sales rack, Fashion Law is on trend.

Scafidi is quoted as describing the academic resistance to the establishment of Fashion Law. Fashion law was considered 'frivolous' but is now a popular and growing academic discipline which covers IP, contract law, finance and employment law.  (I can sympathise; my interest in the economics of fashion and IP has not always met with enthusiasm by fellow economists. Fashion Economics is instead an application of economics.)

Scafidi and DVF (president of the Council of Fashion Designers of America) have, for years, been pushing for increased IP protection in the US for fashion.  Arguments in favour of this often suggest that EU IP protection, particularly copyright, for fashion is vastly superior than the US. However, scholars such as Johanna Blakely (discussed here) argue that copying is essential to the fashion industries.

IPKat readers, please do correct me, but I find it hard to see how EU copyright laws protect fashion in a way that, in practice, has much more market impact than the US approach.

El Pais repeats the arguments that IP is essential for creativity and counterfeiting is ruining everything.  Complete with the usual dodgy statistics and a 3D-printing panic thrown in for good measure. The diamante-encrusted-bias-cut sky is falling!! (And it's as hideous as it sounds.)

I found more IP at the Balenciaga museum (#humblebrag). The museum is a shrine to the prodigal son of Getaria.  Credited with popularising the baby-doll dress, Cristobal Balenciaga was a prominent designer in the mid-20th century. He was, reportedly, very copied:
"The aura surrounding 'the Balenciaga' was practically a social aspiration, meaning that copies of models created by Balenciaga were very appreciated and sought-after, despite not being made with the same standards of manufacturing and fabric quality. 
Balenciaga himself with appropriate
monochrome solemnity
Professional buyers from department stores went to the presentations of the collection seeking models that were easily identifiable with the designer and that also had a novel touch.  They purchased the Balenciaga models already completed (they were not toiles) in order to be able to copy them (sic) a large number of items with the label 'inspired by Balenciaga' or 'Adapted from an original Balenciaga.' 
The desire for a Balenciaga is mentioned in March 1962 Harper's Bazaar: 'Every woman virtually uses one form of his creations, either directly or indirectly,' alluding to the existence of both legal and illegal copies." (Balenciaga museum text, 2015)
There was no detail on licensing, but 'legal and illegal copies' implies that that the house of Balenciaga also licensed designs. The museum text also hints at aspirational aspects of fashion and status conveyed by designs.

Balenciaga is also noted for resisting previewing his collections to the press at the standard four weeks ahead of retail delivery.  This wiki article cites that he sought to limit the proliferation of his designs via press coverage in order to limit copying (interestingly enough, suggestions that the equally revered Dior would copy Balenciaga silhouettes.)

The similarities between the now historical concerns of Balenciaga echo that of the Scafidi-DVF movement. The unifying theme is that copying inhibits innovation and creativity, and is bad. However, there are hints of an untold story here - that of licensing of designs and that of designers copying each other.  For IP to incentivise innovation and creativity in fashion, it needs to balance rewarding existing designs and encouraging future designs.  The lobbying arguments of large, established houses seem one-sided and focus on benefitting existing rights holders.  However, their success may come at the cost of the unrepresented future innovators - who naturally do not have a lobby.

To round out my Spanish sojourn in IP, was the ubiquitous street sales of counterfeit handbags and shoes. More sangria please.

(P.S. Secretly, and I'm guessing most IPKat readers will feel the same, I like seeing IP everywhere.)

1 comment:

Anonymous said...

Comment from CazBar: Years ago, my firm wanted to act for a young and innovative designer who was extensively and flagrantly copied by a massive luxury fashion house (itself famed for its innovation). The evidence against them was unequivocal (inc proof of their purchase of the copied designs from her shop) - in fact, the client suspected that they actually showed at least one of her handmade originals in their photoshoots. Nevertheless, but understandably, having been stonewalled by their lawyers, the client did not have the stomach to issue proceedings, even on a CFA, and we had to let the case drop. We had them bang to rights, but knew that the stress (and possible professional suicide) was too high a price to pay for suing them.

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