From the day kids pick up their first No. 2 pencils, they’re taught that copying is wrong. But in a new book, two law professors argue that in the fashion industry—and other creative fields—copying can be oh-so-right. University of Virginia’s Christopher Sprigman and Kal Raustiala, from the University of California-Los Angeles, challenge the assumption that more copyright protection is always better business in The Knockoff Economy. TIME spoke with them about the prevalence of knockoffs, what protections designers have and how imitators may help the originators.
How widespread is copying in the fashion world?
CS: There’s a huge amount. You just have to go to mall to figure that out. There’s some copying that’s point-for-point. You see, for example, a dress that some starlet wears at the Oscars and afterwards you see a bunch of copies. But more, you see a lot of designers taking inspiration from other designers.
KR: There’s also a lot of counterfeits out there, like where there’s a fake Gucci label. That’s illegal. If the goods are found, they’re seized. But what we’re focused on is the design part, where typically it is completely legal. And the reason is that copyright law has never really addressed fashion designs. The overall cut of a particular garment has never been protected in the U.S.
So why aren’t all designers, everywhere, protesting madly?
KR: A certain number of them are. It’s easy to recognize when you’ve been copied and feel like you’ve been ripped off. It’s harder to see all the examples [when you might have] benefitted from it. Maybe you were part of building a trend, and that led to more sales for your item. The truth is a lot of people say, “Look. This is the nature of the business” or “It’s a good thing to be copied. And I’d be a lot more worried if I wasn’t being copied.”
Like when Leon Bendel said in 1947 that “copying is a natural consequence of fashion … By the time a design of ours is copied in the cheaper dress lines, it’s probably time for it to go.”
KR: Bendel epitomized for us a particular way of thinking. There are two strands of thinking in the fashion industry. One is, ‘Copying is terrible. We’ve got to do something about it.’ The other is, ‘Hey this is the nature of our beast. It’s inherent in what we do.’ That quote shows that the debates that we’re having today are same debates they had in the ’40s, and in the Depression, and so on.
In the book, you’re taking sides in the debate and saying copying is good for the fashion industry. Why?
CS: There are a couple of different things going on that make copying and creativity run together very nicely. One is that copying helps to set trends. We see a popular design copied and modified in a way that helps us to recognize that this is a trend. Then, as the copying is done more and more and more, it helps to kill the trend: When the trend gets over-copied, the fashion-forward people drop it and move on to the next thing. Copying is actually the fuel that runs the fashion cycle, and by making the fashion cycle go faster, it helps the apparel industry sell more stuff. Another thing copying does is communicate to us what’s in style. So you see a widely copied design. That’s a signal that the fashion industry is sending to you, and it lowers the information cost of getting dressed. It helps you understand what’s right to wear at any given time.
What protections are out there, in the absence of general copyright protection?
CS: There’s trademark protection, which prevents somebody from using your brand without your permission. And then there’s some peripheral protection for fabric patterns and then in odd cases, there are design patents. For example, on some types of handbags.
How does this culture of copying affect American consumers—the ones buying the $2,000 Balenciaga cocktail dress and the consumers who could never afford that?
CS: The system of copying makes fashion a lot more democratic. You don’t have to be rich to look great. Some people have said that if you can copy a $1,000 cocktail dress and produce a credible-looking $70 alternative, this erodes the status premium that the one-percenter gets. In the hierarchy of American problems, that comes way at the bottom.
KR: Certainly when Congress has thought about fashion-design protection, they’ve been concerned about the ability of ordinary people to afford clothes. And that is an unsung aspect of designers being free to copy each other.
CS: And it’s more complicated than that. Trademarks are used by fashion firms to preserve a huge amount of the cache of a Dolce & Gabbana dress. Even if that dress can be knocked off, it’s still a Dolce & Gabanna, and that mark means a lot. We went to the Bureau of Labor Statistics and got information on the prices of dresses over time. What you see is for all fashion goods, up to the tip-top of the hierarchy, the prices over time have stayed about the same. Whereas the stuff at the top, the luxury fashion goods, the Chanels, the Pradas, that stuff is getting more and more expensive.
Is that partly because, if other people are finding easier to look like they do, high-fashion shoppers seek to set themselves apart with how much they paid for the clothing?
CS: It’s counter-intuitive, but there’s something to that. The counter-story is that the knock-off is competing with the Chanel dress. Well, if it was competing, you would expect the Chanel dress to be getting cheaper. And it’s getting more expensive.
KR: There is evidence that some people start off with things at the lower end and move up, like a trial period. There’s a study that showed that people would start off with these knock-off handbags and then many of them graduated. It was like a gateway drug to the more serious or expensive stuff. It’s still true that they don’t compete. The cheap Chanel-copy dress and the real Chanel dress are in different markets … but copying does erode the status premium a great new design offers, because it spreads that design around the marketplace and people don’t really want to wear that anymore.
In the book, you mention that Europe gives their fashion designers more protection. Does that suggest that in America we value fashion designers less than other creative people, like painters and musicians?
CS: The story with Europe is interesting. There’s much more protection on the books. That said, some of the biggest fashion copyists are European. H&M. Zara. Top Shop.
KR: One of the reasons that fashion isn’t protected is that we view it as functional, the same as food. It’s something you need to survive. It’s not an art form the same way that music or painting is, which have no real function. At a deep level, there is this distinction drawn in the law.
How is innovation different in the fashion world than other industries?
CS: Innovation in fashion is basically just change. There’s some innovation with fabrics, like Gore-Tex. But most innovation in fashion is about the design of clothes, and it changes over time but it doesn’t conduce to some kind of goal.
KR: It doesn’t “improve.”
CS: Right. Unlike innovation in cell phones, which is about making cell phones better. In a rough sense: lighter, cheaper, longer battery life, more features, more flexibility, prettier. With fashion, something that looks really great today might look horrible two years from now and then may look really great again in two decades.
So when does copying harm fashion?
KR: If you’re looking at the industry overall, it hasn’t. Not to say it couldn’t in some way in the future. It’s been a force for good at the aggregate level. But at the individual designer level, sure. There are plenty of examples of people who have suffered because of a particular instance of copying.
CS: If we had a system where there was a lot of copyright, there would be some individual designers who were harmed by accusations of copying that led to liability. This is a world populated by men, not by angels, and any system of regulation is going to produce winners and losers. The point that we make in this book is that the fashion industry as a whole does very, very well in a system where copyright stays out. The debate tends to go something like, “If we permit copying, the industry is going to die.” We continue to permit copying: the industry stubbornly refuses to die. In fact, it thrives, it grows, it innovates, it changes.