As the New York Times reported last week, Forever 21 has become a real success story in American retail clothing, growing from a single 900-foot store in downtown LA to over 400 locations and a number of off-shoot companies. The secret behind the store's popularity has been its ability to quickly imitate haute couture fashion and sell it for a fraction of the runway price. Take, for example, these two candy-striped dresses:
The one on the left was put together for Anna Sui's spring collection and sells for $200. The one on the right, already available in stores, is an imitation by Forever 21, and sells for $17.80.
Here's another example. Diane von Furstenberg's 'scattered stone' print blouse on the left sells for $180, while Forever 21's sells for $24.80.
(you can find plenty more examples here)
As UVA professor Chris Sprigman has explained on this site, what Forever 21 does is entirely legal:
The logos and labels that adorn apparel and accessories are protected by trademark law. But the designs of the garments themselves – the cut of a sleeve, the fit of a bodice – are not. Copyright law does not cover most fashion designs because clothing is a “useful article”, a class of items that falls in the jurisdiction of patents and not copyrights. But patent law is almost irrelevant to fashion designs, both because the patent standard of “novelty” cannot be met by most designs, and for the practical reason that the patent application process proceeds too slowly to be meaningful for most fashion designs, which live a brief commercial life and then disappear.
Readers of this blog might recall, Rep. Bill Delahunt (D-VA) and Rep. Bob Goodlatte (R-VA). recently reintroduced HR 2033 to extend copyright protection to the fashion industry – in short, to make the kind of business model Forever 21 uses illegal. We at PK feel this is problematic – not just for individual businesses like Forever 21, but for the fashion industry as a whole. In spite of some complaints by name-brand designers, the fashion industry is capable of sustaining – and in fact may be sustained by – this sort of imitation. As Prof. Sprigman writes:
The fashion industry profits by setting trends in clothing, and then inducing consumers to follow those trends. This process leads us to treat clothing as a status-conferring good to be replaced once the fashion changes, rather than as a durable good to be replaced only when all the buttons fall off… The fashion industry's ability to create trends is based on designers' relative freedom to copy.
If you eliminate the freedom to imitate, you eliminate successful businesses like Forever 21 and with it the driving force behind many of today's fashion trends.