suk-hemphill2If it’s illegal to copy books and paintings, why should fashion designs be any different? That was the question posed by HLS Professor Jeannie Suk ‘02 and Columbia Law Professor C. Scott Hemphill in a recent op-ed in the Wall Street Journal. In their op-ed, “Schumer’s Project Runway,” which appeared in the August 30, 2010, edition of the Journal, the authors discuss a bill introduced earlier this month by Sen. Charles Schumer (D., N.Y.) to protect fashion designs. Suk and Hemphill are the co-authors of “The Law, Culture, and Economics of Fashion,” an article which appeared in the Stanford Law Review, vol.61, issue 5, March 2009. The WSJ op-ed is reprinted here with permission.

Schumer’s Project Runway

C. Scott Hemphill and Jeannie Suk

For two centuries U.S. law has recognized that allowing unauthorized copying of creative works—books, painting, photography, film, music—dampens the incentives of creators. Federal law has therefore prohibited copies that are “substantially similar” to the original. But the legal system has not extended this protection to “useful articles” such as clothing and shoe designs.

Especially for designers who are not household names, this can be devastating. Apparel makers can rip off their best designs, robbing them of the chance to profit from their creative work. With improved technologies, copies can be made quickly, sometimes just as the originals are being released. And because the copies are often a fraction of the price, many consumers buy the knockoff instead.

To be sure, a few prominent designers enjoy limited protection through trademark. But unlike a handbag marked with Gucci’s interlocking G’s, most fashion items do not bear a trademarked logo.

Some designers have claimed in court that copyists infringed their “trade dress,” which protects certain product designs, such as the curvy shape of a Coca-Cola bottle. But to win a trade dress case, the designer would have to convince a court that when people see the copied product, they think of the maker of the original. This is difficult because even original fashion designs often lack the heavy publicity needed for the public to associate a design with a specific designer.

This hurts talented but not yet well-known designers the most. Mass-produced knockoffs can put them out of business before they have fully emerged in the market.

Congress has for several years considered adding fashion design to the copyright laws. But previous bills were thought to protect too much—failing to acknowledge that almost all fashion designs, whether classic or cutting edge, are inspired to some degree by the works of other designers. A law prohibiting similarity in fashion would be like banning fashion itself.

Sen. Charles Schumer (D., N.Y.) introduced a bill earlier this month that attempts to get around this problem. It prohibits only design copies that are substantially identical. In layman’s terms, a good way to tell if a copy should be allowed is to ask whether it fails the “squint test”: If you need to squint to see the difference between two designs, then one is an infringing copy of the other.

A knockoff would fail this test if it’s difficult to tell it apart from the original. That means changing barely noticeable details, like moving a button, or using a different thread in some stitching, won’t do the trick. But designs that are merely inspired by prior designs would pass the test and remain legal. The very worst offenders would be caught or deterred. Designers would be left free to riff on—but not rip off—each other’s work.

Mr. Schumer’s bill goes to great lengths to make sure that designers are free to make clothes or shoes that are part of the same fashion trend as the original. For example, the bill doesn’t protect a run of the mill T-shirt—only truly unique designs. And to guard against the possibility that great minds simply thought alike, the copying victim must show specifically that his original design was available—for example, that the design was featured on a runway—such that someone would have been able to copy it.

Opponents of fashion design protection argue that it would hurt the industry. They imagine a world in which Brooks Brothers monopolizes the pinstripe, or Diane von Furstenberg controls the wrap dress. But that catwalk of horribles has nothing to do with the new fashion bill, which is carefully limited to substantially identical copies of a particular original design.

Some consumers may regret not being able to buy knockoffs that are essentially replicas of desired items. In the long run, though, as with books and movies, the expectation is that consumers will benefit from the wide variety of creative works to which this sensibly narrow copying prohibition gives breathing space. In this case, what is good for American producers is also good for American consumers.

Reprinted from The Wall Street Journal © 2010 Dow Jones & Company.  All rights reserved.