With Alexander McQueen suing Steve Madden for knocking off his “motobooties,” it seems that fashion bloggers are ablaze asking if knock-offs are okay (Birdiee makes a case for the knock-off and Poppy Gallico makes an passionate & emotional case in favor of, while Poochie thinks knock-offs are bad for the soul).
I haven’t kept my thoughts on the subject particularly quiet over the years (see: Trashy Etiquette, To Buy or Not to Buy…. When a Designer’s Knocked Off), but it seems like something I don’t bring up as often as I should. The fact is, I find knock-offs to be a grey area in my life, and I know in the pit of my stomach when I have no problems with it or when I do. I’m in favor of fashion being accessible and affordable, but I’m not okay with independent businesses suffering.
Protection, What Protection?
It seems natural to want to protect fashion designers under copyright law, much like art is (as right now, fashion actually has very, VERY limited protection & much of it is only within the realm of patents & trademarks). However, only the following forms are art are actually protected under copyright law: poems, theses, plays, other literary works, movies, dances, musical compositions, audio recordings, paintings, drawings, sculptures, photographs, software, radio and television and broadcasts.
In reality, copyright law doesn’t protect a whole lot.
In its early development, copyright law seemed destined to protect that that is one-of-a-kind or not easily imitable. For me, there lies a difference between fashion & art– fashion is meant to be consumed, meant to be manufactured in large quantities & possessed by many people, whereas original artworks can physically only be possessed by one person.
That doesn’t mean that fashion shouldn’t have certain kinds of protection– it just means that the law has to be really flexible in establishing what can be protected (such as a trademark on the shoe) and what can’t be protected (the cut of an A-line dress for example). Within fashion, so much of it staggers off the creation of other lines, influences, that certain protection couldn’t be available– why should a designer be allowed to copyright or patent a construction technique, making it impossible for all other designers to use it without costs?
Is it Art?
How much of fashion is intended as a designer’s artistic expression, and how much of it is meant for consumption and practical wear?
To continue picking on McQueen: his F/W collection created a storm on the internet and in fashion, with his unimitable Alien/Predator shoes. At a staggering 13″, these shoes were undoubtedly the designer showcasing his abilities as a designer and artist, not creating with the “Ready to Wear” attitude in mind.
Face it: unless you’re Lulu Guiness or Lady Gaga, those shoes aren’t practical OR ready-to-wear.
More importantly– should the two be distinguished separately by law? Should haute couture be legally protected in ways that ready-to-wear collections aren’t, because of their mass audience appeal and ability to earn high profits for the company? Is audience demand, wearability, and functionality a part of what kind of restrictions should be in place on a garment?
Licensing: the magical solution?
One area of art law that I haven’t seen discussed in relation to possible fashion law would be the option of licensing fees. Granted, this would only be applicable in the event that ready-to-wear fashion designs ARE given some sort of artistic protection. (Right now it’d be moot, since the only course of action is to sue another label for replicating your designs.)
Art gets around the idea of “one owner” through price discrimination and licensing- we can purchase prints, posters, postcards, umbrellas, coffee cups, etc. of our favorite art works at significantly reduced prices, and this is because museums and private collectors understand that there is a desire for the public to own these pieces & appreciate them on a daily basis, much like fashion.
So why don’t fashion houses license out their designs to large companies? Why doesn’t Alexander McQueen license out the design of his motobootie to Steve Madden, Wet Seal, or any other willing and paying company for the right to reproduce a very similar design to sell at a different price point?
A problem with this could be derivatives:
A “derivative work” is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.
We actually see what could be a lot of derivatives in the fashion world. This would account for every gladiator sandal that has enough similarities to Dior’s to be recognizable, but enough differences that they actually look like different shoes.
But would licensing be a successful alternative for protecting companies & designers like Alexander McQueen from having almost every detail copied and reproduced by another company?
What do you think? Are we overlooking obvious alternatives to this situation? Is it more grey than we imagined, and are there more possibilities than we’re considering? Would it be fair for the big fashion houses to accept royalties and licensing fees for the right to reproduce their designs?
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I think it’s such a complicated issue! Seeing as the entire industry is based on the idea of trends filtering down from the catwalk there’s a very fine line between “filtering” and “ripping off”
Your licensing idea is interesting, though if copyright law doesn’t protect the design there’s not much incentive for companies to pay for the licensing? Also it’s not far from designer collaborations and I guess some high fashion labels don’t want their designs associated with high street retail?
Retro Chick´s last blog ..Show Me Your Christmas Tree!
Wowee. Great article, honeybunch! I completely agree with Retro Chick’s first comment – that there’s such a fine line between ”filtering” and ”ripping off”. It IS such a complicated issue, and there’s really no easy answer or solution to it. But slightly off topic, I am AMAZED at those Steve Madden boots – before glancing at the text underneath, I actually assumed they were the Alexander McQueen ones, I thought they were THAT stunning..
Licensing isn’t the perfect answer. It can get out of control if people aren’t smart about it. Licensing ruined Halston’s brand image. Pierre Cardin went too far too. Then the name collapses and the licenses are worthless…
As I’ve said before, there’s a lot of grey areas around the knockoff issue but Steve Madden is just an outright thief of ideas. The behavior is persistent. But what would you expect from a company whose founder was a criminal himself: http://nymag.com/nymetro/news/bizfinance/biz/features/4406/index3.html
WendyB´s last blog ..Buy It Now: Wendy Brandes for Francis Swear Rings
Wow! What a complicated issue. I think in a perfect world, more would be done to protect the designers. But unless it’s an exact replica there are just so many gray areas–It seems nearly impossible to properly and fairly enforce this. Although you have some interesting ideas that I think should be explored.
Because we’re kind of on subject…I’d like to throw a question out to you and others: Have you ever had your site totally ripped off? Just yesterday I found a site copying mine…word-for-word and right down to the photos and illustrations. As bloggers, do we have any real rights here–or is it (as I suspect) that same gray area? Thanks! Piper
Piper´s last blog ..THANK YOU!
Interesting! I’ve never thought of licensing a design…seems like a good plan to me. I have a feeling, though, that by the time the design is properly licensed the season will be over anyway and it may not even be worth it. Awesome post, though.
Erica from Unfunded´s last blog ..I Like Your Style
I think licensing would be a great happy medium between disgruntled designers and lines that are all about accessibility and affordability.
Nice work, Ashe.
There is a thin line between “interpretation” and downright knocking off. I agree with Retro Chick that part of the fashion infrastructure is the trickling down of ideas and possibly licensing some of their designs may help them and also fuel the hunger for “designer” looks.
Fajr ´s last blog ..What I Wore: Feline & Floral
I think licensing is a fabulous idea. It’s kind of akin to what Birdie & I were talking about the other day – I think it’d be a great idea for designers to have like, a “gold” label, a “silver” label, and a “bronze” label (for lack of better terms?). With the gold being their usual prices/materials/etc., their silver label being something more mid range ($300-500) and their bronze label being “lower” (not by most peoples’ standards, but by fashion standards, at $100-300). I think something like that would work well and I’m sure people would still buy the gold label just out of sheer label snobbery, but it would make their designs accessible to a lot more people and it would probably virtually eliminate knockoffs (because why pay $100 for something when you can pay $125 and get a “real McQueen” whateveritis?).
I seriously doubt any designer would actually do it, because I’d think that they’d worry about brand dilution or being too accessible or whatever. But I think it’s a fabulous idea.
Anyways, I think knockoffs are a pretty gray area too. Something like the Trashy Diva debacle infuriates me, because that’s stealing money from a relatively small line, but someone knocking off McQueen is kind of meh in my book, because I seriously doubt that really affects his cashflow. I do think it’s kind of…icky? to have a label that’s ENTIRELY composed of knockoffs, though.
(Holy huge comment, Batman!)
Michelle´s last blog ..Marvelous Monday!
I think it’s hard because there really isn’t any middle ground… for most people, you’re either okay with knock-offs (and all that comes with it) or your morally opposed to them.
While I find myself in the latter category, I can’t help but wonder: would licensing change the face of fashion? I kind of think it would… but I’m not sure that would be a bad thing, especially with the steadily decreasing financial stability in this country.
We all need fashion, one way or another.
Jaime @ Denim Debutante´s last blog ..New Shopping Site Premieres: Jasmere.com!
I wonder if prices would go up for knock-off shoes if the big fashion houses licensed their designs and made the other companies pay for them. It would definitely be advantageous, even to big fashion houses like McQueen who already have a lot of money…
but I agree with Michelle in that those big fashion houses probably don’t want to seem more accessible, haha
I think licensing is a great idea though, even though I’m sure a LOT of arguments would arise over what’s knocked off and what’s just a deviation… fashion builds on itself, which makes it complicated.
Great post! I really like your blog :D
Sarah´s last blog ..Holidays!
Great post! Back when I saw the knock-off I was appalled. Looks like the only difference is the missing trademarked skull zipper pull. I don’t have any other answers, but I think your idea of licensing is a great solution. However, as Retro Chick stated, licensing would only work if the laws were changed to protect the designer from being knocked-off. As it stands now, they have no need to pay for a licensed design when they could blatantly rip it off without laying out a dime. From a designer’s perspective many are not interested in the democratization of fashion but it would appeal to those who are — Alexander McQueen happens to be one of them.
Piper: In answer to your question, its outright plagiarism & is illegal to copy a website and pass it off as your own. Websites are covered under copyright law — your words are copyrighted, as are your photographs. The idea you had in mind when starting it is also copyrighted as intellectual property. Threaten with legal action asap and demand they take down the site. If they don’t, find a good copyright lawyer and sue them. You’ll win. I have the same feelings about plagiarism as I do with knock-offs — they show a complete lack of imagination as well as disregard for the original designer’s hard work. When it happened to me (with some of my published work) I was shocked to find an astounding amount of plagiarized material available on the internet. It made me wonder if they bother to teach the importance of plagiarism to kids anymore.
Cheers!
Suzanne
Suzanne aka Punk Glam Queen´s last blog ..MoMA Exhibitions & Sneak Peek at Tim Burton Exhibition!
Like you, I change my approach to the issue on a case-by-case basis. Sometimes a knock-off seems alright; at other times it’s completely exploitative. The big trends that define an era in fashion – Dior’s New Look, for example – pretty much always involve knock offs. I think licensing is a good option but there is always going to be someone making the same thing, but differently, and someone out there might prefer it – maybe the fabric is nicer, the colour is different, or the fit is better. And in that instance people aren’t necessarily choosing the licensed product.
I don’t know what the solution is, but I think that whatever it is it needs to take into account the various scenarios in which copycat behaviour IS okay!
Thanks for giving us an article that sees it from all sides :)
Amelia M´s last blog ..Recently, in real life
licensing already exists within the fashion world and is a bit complicated and not the most ideal solutions as this affects the integrity of the brand.
mostly it allows companies to use the name of the brand on their products make a compromise to follow certain guidelines and pay fees but many licensees find loopholes to lower quality and raise profits and we’re talking products already very cheap that could be retailing for say $38.00
The type of license you sugest would be difficult to apply since even if you have a very similar design you could argue it’s the same inspiration so to explain similarities in design so it’s a very big grey area
You have asked a lot of great questions, I am not entirely sure where I stand, so it is great to be able to ponder different angles. Obviously, i thnk stealing is wrong and artists / designers need protection, but inspiring anf filtering the ideas are a little different than copying. But some responsibilty is on the consumer to try to decifer whether they are buying knock-offs and copies or just something with the same ideas as something off the runway you can’t afford. tricky topic, but posting, commenting and keeping the discussion going will help come up with good answers.
Kristen´s last blog ..Recycled Style Project: 12 Holiday DIY Projects
Um…Balenciaga Booties v. Sam Edelman Zoe anyone? Coveted by most, and blogged to death, that boot is essentially a knock off as well, kind of an adaptation but exactly the same shape (well the heel is a little different). But is it those tiny little details of difference that make it ok for the Zoe to exist and not the Steve Madden “knock off”? Because if that’s the case then Madden should have just added subtle differences. I’m all about lower price points and hip unique pieces, so I can’t say that I’m against adaptations, the term “knock off” has such a shitty stigma to it though.
I’m not sure if the whole licensing thing would work. I think designers seeking to capitalize on another designers successful piece, should just use it as inspiration and adapt it, so I guess I’m saying that Madden should be sued because he didn’t just adapt McQueen’s shoe, he replicated it. tsk tsk.
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