Copyright for fashion?

Representative Delahunt from Massachusetts recently reintroduced the Design Piracy Prohibition Act before the new Congress (a Senate bill will follow shortly). The Act would give copyright-lite protection for fashion designs for the first time in the United States (a similar type of protection has been effective in the European Union since 2002). What is copyright-lite? It's not a legal term. It's my attempt at describing the less-than-full set of rights that fashion designers would receive under the Act relative to book authors, music composers, and screen writers (to name a few traditionally protected groups). Instead of the usual copyright term of life of the author + 70 years, the Act would only protect designs for a term of 3 years. Additionally, instead of the traditional "substantially similar" test for copyright infringement, the Act would make it harder to prove infringement in the fashion design context -- a plaintiff would have to show that the allegedly infringing design is "closely and substantially similar in overall visual appearance to a protected design" and that this similarity doesn't "merely reflect a trend."

Is this Act a good thing? Scholars have written about the consequences the Act would have for intellectual property law and for the economics of fashion. But what about for us --would this Act, if it became law, be a good thing for us? Would it lead to there being "better" -- i.e. more "original "** -- fashion at cheaper price points? If Forever 21 could no longer rely on the designs running down the runway at the Prada and Dior shows to be templates for the clothing it puts out season-after-season, might Forever 21 re-work its business model and hire a set of in-house designers to create “original” designs for the company? Surely, this would cost Forever 21 more money. Would we be willing to pay a premium for “original” clothing? The fact that stores like Forever 21 do so well suggests that many of us do not have a problem wearing "copies" of high fashion designs and would probably not put a very high premium on originality. On the other hand, H & M and Zara, which strive to add originality to their designs and which do not engage in the identical copying that Forever 21 does, also have booming businesses.

Whether we'd be willing to pay a premium for original clothing comes down to two things: (1) Do we like original clothing better or do we like looking like the people that wear high fashion and like each other (because Forever 21 et al. mass-produce these copies, many of us are bound to be wearing the same copied design, while Prada et al. recognize that exclusivity is part of the what makes their clothes valuable and so make many fewer of each design)? And (2) Do we feel that we have a moral obligation to wear clothing that is not an exact knockoff of a fashion designer's hard work? The second question is more personal, and each of us may feel differently about it -- for some this may be akin to stealing, while others might consider fashion designs to belong to all of us as part of the public domain.

An answer to the first question, I think, is more capable of generalization. Most women get a sinking feeling when they see another woman at a party or at work wearing the same outfit that they are wearing. For most women, then, some degree of originality is important. But most women also like to go out each season and buy a few on-trend ensembles. To be on-trend, by definition, these women have to wear things that look similar to what other women are wearing. So this seems to be a question of degree. Most of us want to look somewhat original and somewhat similar. In the comments, I would love to hear how "original" you like your clothing to be and how important looking "original" is to you. Does it matter how "original" each individual piece of clothing is or do you feel sufficiently original combining knockoff pieces with other pieces and accessories to create your own unique ensemble?

** I put "original" in quotes because truly original (as we usually think of the word) is hard to come by in fashion -- pretty much everything that can be done has been done. Instead, what's original is the unique combination and arrangement of already-done elements (e.g. florals, ribbons, fringe, etc.).