Inspired-bys deserve more respect than knockoffs because they help us resolve our warring fashion impulses. The first impulse is the human tendency to flock toward a trend. The second is the equally strong desire to stand out. Most of us don't want to look like we got dressed in a different decade, but we also don't want to wear the exact same outfit as another person to the same event, whether it's a casual party or an inaugural ball. Ruffled blouses, skirts, and dresses are in the stores this spring, and women are wearing them. But not everyone is wearing the same exact ruffled dress. For ruffles to take off, designers have to come up with scores of variations on them, to satisfy the nuanced tastes of consumers at various price points.
If we used prevailing copyright law standards to ban design copies, however, we'd have a lot fewer to choose among. For books, music, and movies, "substantially similar" works as a legal standard because creativity is not inextricably intertwined with flocking toward a trend. Movies may cluster, but dozens with similar screenplays and settings don't pop up in the same season.
Even with the narrower standard now on the table before Congress, we need to guard against the risk that nearly every riff on a fashion trend could become fodder for a lawsuit. Designers could be locked in endless legal battles about who came up with what. Originality in fashion is almost always a matter of complicated reinvention, a reworking of previous eras and contexts. Ralph Lauren, for example, has made his brilliant career recreating the looks of the 1920s and 1930s. What he doesn't owe to the Prince of Wales or F. Scott Fitzgerald is hardly worth mentioning. The same is true, from designer to designer, within seasons. Designers—all of them—put together fashion shows by visiting trade shows organized by fabric suppliers, talking to department store buyers, and nosing around each others' ateliers. Ruffles aren't new. They're recycled.
But this doesn't mean that fashion designs are completely unsuited to copyright protection. The solution, practically speaking, is to enable the inspired-bys to keep at it while shooing away the knockoffs, which are the ones that reduce the incentives of fashion designers at all levels to come up with new designs. Some people will buy a new Jason Wu design. But if essentially the same dress is soon available at a fraction of the price, some will go for the knockoff, especially when cash gets tight, or simply decide not to buy the design at all, because the knockoff has made the design seem less distinctive.
Here's where the squint test comes in. The protection it offers against copycats would especially help independent designers, many of them American—the same designers whom, not coincidentally, Michelle Obama has championed. Several of them, including Jason Wu, went to Washington in April in search of support for reintroducing the fashion design bill. When emerging designers begin to gain recognition, they often don't have the money to fight knockoffs with expensive advertising campaigns that reinforce the authenticity of their brand. They also usually don't have the logos on handbags and accessories that enable the big-name designers to enjoy the protection of existing trademark law.