Designers Seek Protection From Fashion Copycats

May 13, 2009 — -- In time for prom and bridesmaid season, knockoffs of Michelle Obama's Jason Wu inauguration gown will soon hit the stores.

Companies that offer knockoffs—like Forever 21, or in the case of the inauguration gown, ABS—make their money by closely copying fashion designers' latest offerings and selling the clothes at a far lower price.

Thanks to factories abroad, digital cameras, and the Internet, copycats can get their wares on the sales rack just weeks after the original design has been unveiled. Check out this $40 knockoff of a $440 Foley & Corinna dress and this $28 version of $800 Chloe booties.

A second set of companies, like Zara and H&M, brings fashionable clothes to regular consumers, but without closely copying the design of their fancy and costly brethren. Their clothes are usually not knockoffs but rather inspired-bys. They participate in the same of-the-moment trend, but are noticeably differentiated from a particular high-end design.

Currently, both the knockoff and the inspired-by approaches to fashion are entirely legal. United States copyright law considers items of apparel "useful articles," which are not legally protected the way books, music, and movies are. But all this could change if Diane von Furstenberg and the Council of Fashion Designers of America get their way.

During the last session of Congress, a House committee heard testimony on legislation that would treat fashion design like other protected areas of intellectual property, protecting original designs against copies that are "substantially similar"—the ordinary standard for other kinds of creative works protected by copyright. Last time around, the fashion design bill didn't pass. But its supporters are now bringing before Congress a new and improved version, and it stands a better chance.

It is easy to see why the big-name designers whose works are regularly copied would want protection. The famous fashion firms believe their profits are being undercut by imitators. The bill's backers say the only losers would be copycats, who are getting a free ride.