I heard this amazing story about Miuccia Prada. She’s an Italian fashion designer. She goes to this vintage store in Paris with a friend of hers. She’s rooting around, she finds this one jacket by Balenciaga — she loves it. She’s turning it inside out. She’s looking at the seams. She’s looking at the construction.
Her friend says, “Buy it already.” She said, “I’ll buy it, but I’m also going to replicate it.”
Now, the academics in this audience may think, “Well, that sounds like plagiarism.” But to a fashionista, what it really is is a sign of Prada’s genius: that she can root through the history of fashion and pick the one jacket that doesn’t need to be changed by one iota, and to be current and to be now.
You might also be asking whether it’s possible that this is illegal for her to do this. Well, it turns out that it’s actually not illegal. In the fashion industry, there’s very little intellectual property protection. They have trademark protection, but no copyright protection and no patent protection to speak of. All they have, really, is trademark protection, and so it means that anybody could copy any garment on any person in this room and sell it as their own design.
The only thing that they can’t copy is the actual trademark label within that piece of apparel. That’s one reason that you see logos splattered all over these products. It’s because it’s a lot harder for knock-off artists to knock off these designs because they can’t knock off the logo. But if you go to Santee Alley, yeah… Well, yeah Canal Street, I know.
And sometimes these are fun, right? Now, the reason for this, the reason that the fashion industry doesn’t have any copyright protection is because the courts decided long ago that apparel is too utilitarian to qualify for copyright protection. They didn’t want a handful of designers owning the seminal building blocks of our clothing.
And then everybody else would have to license this cuff or this sleeve because Joe Blow owns it. But too utilitarian? I mean is that the way you think of fashion? This is Vivienne Westwood. No! We think of it as maybe too silly, too unnecessary.
Now, those of you who are familiar with the logic behind copyright protection — which is that without ownership, there is no incentive to innovate — might be really surprised by both the critical success of the fashion industry and the economic success of this industry.
What I’m going to argue today is that because there’s no copyright protection in the fashion industry, fashion designers have actually been able to elevate utilitarian design, things to cover our naked bodies, into something that we consider art.
Because there’s no copyright protection in this industry, there’s a very open and creative ecology of creativity. Unlike their creative brothers and sisters, who are sculptors or photographers or filmmakers or musicians, fashion designers can sample from all their peers’ designs. They can take any element from any garment from the history of fashion and incorporate it into their own design.
They’re also notorious for riffing off of the zeitgeist. And here, I suspect, they were influenced by the costumes in Avatar. Maybe just a little. Can’t copyright a costume either.
Now, fashion designers have the broadest palette imaginable in this creative industry. This wedding dress here is actually made of sporks, and this dress is actually made of aluminum. I’ve heard this dress actually sort of sounds like wind chimes as they walk through.
So, one of the magical side effects of having a culture of copying, which is really what it is, is the establishment of trends. People think this is a magical thing. How does it happen? Well, it’s because it’s legal for people to copy one another.
Some people believe that there are a few people at the top of the fashion food chain who sort of dictate to us what we’re all going to wear, but if you talk to any designer at any level, including these high-end designers, they always say their main inspiration comes from the street: where people like you and me remix and match our own fashion looks. And that’s where they really get a lot of their creative inspiration, so it’s both a top-down and a bottom-up kind of industry.
Now, the fast fashion giants have probably benefited the most from the lack of copyright protection in the fashion industry. They are notorious for knocking off high-end designs and selling them at very low prices. And they’ve been faced with a lot of lawsuits, but those lawsuits are usually not won by fashion designers.
The courts have said over and over again, “You don’t need any more intellectual property protection.” When you look at copies like this, you wonder: How do the luxury high-end brands remain in business? If you can get it for 200 bucks, why pay a thousand? Well, that’s one reason we had a conference here at USC a few years ago.
We invited Tom Ford to come — the conference was called, “Ready to Share: Fashion and the Ownership of Creativity” — and we asked him exactly this question. Here’s what he had to say. He had just come off a successful stint as the lead designer at Gucci, in case you didn’t know.
Tom Ford: And we found after much research that — actually not much research, quite simple research — that the counterfeit customer was not our customer.