Are these two dresses substantially similar? That was a question posed at the House Judiciary Courts, the Internet and Intellectual Property subcommittee hearing last Thursday to discuss the proposed legislation creating copyright for fashion design. H.R. 5055 would give designers a three year copyright over a fashion design and would create infringement liability, even for designs that are substantially similar.
Fashion trend analyst David Wolfe testified (written testimony available here), and stressed how difficult it is to determine originality in any fashion design, “it is a craft that is dependant on building on the past, ideas that became before. It is evolutionary.”
Mr. Wolfe said that Oscar de la Renta once said to him, “All we can do is go in and out and up and down over and over and over,” and continued, “I don't think any one in this room is wearing anything that we cannot trace through fashion history and find its derivation.” Wolfe's testimony about the lack of originality in fashion begs the question of whether fashion could ever be copyrighted because copyright requires originality.
To answer the above question about the similarity of the dresses, law professor Chris Sprigman said that under the substantial similarity standard that the bill employs, yes, the dress on the right infringes the one on the left. While fashion designer Jeffrey Banks disagreed, noting that one has a capped sleeve while the other uses spaghetti straps, Prof. Sprigman pointed out how bill would create an overly broad copyright:
The substantially similarity standard as its developed in the courts has nothing to do with exact copies, it has to do with taking inspiration, which is what the fashion industry does… this bill makes unlawful what they do.
The bill's proponents claimed that the fashion industry suffers $12 billion in losses to “piracy” every year. Piracy is a loaded term that was used by proponents of the bill because it evokes ideas of file sharers, piles of DVDs in Hong Kong and counterfeiting. This bill extends far beyond “piracy” and would create infringement liability when designers are inspired by each other or following trends because of the substantial similarity standard.
We don't know how the piracy figure was calculated, and what goods it includes, but the dresses above demonstrate what could be misguided about calculating the economic effects of fashion copying. The dress on the left is a Diane von Furstenberg and sells for around $400. The dress on the right is from Target and sells for $24.99. They are meant to sell to different consumers. The women who can afford an original Diane von Furstenberg are unlikely to purchase a knock off at Target because the Target dress does not have the same cachet. The women purchasing the Target dress probably don't have the economic means to afford a $400 dress. If Target cannot sell the dress on the right for $24.99 because its substantially similar to the one on the left, it's highly unlikely that Diane von Furstenberg is going to sell any more of the dresses on the left.