Here are some pics of driving shoes. First, the original Tod shoe:
Now, some “copies” from Bacco Bucci, Minnetonka, Ecco, E.T. Wright, and Ralph Lauren . . .
Notice that these shoes are all similar (moccasin style, sole that runs up the back) but they are also all different. The Minnetonka shoe is a kind of backwoods version — maybe we could call it a snowmobile driving shoe. Relatedly, the Ralph Lauren shoe seems to be aimed at the owners of large cigarette boats. In fact, I think the shoe would fulfill its purpose better if Lauren had applied a large glittery gold “$” to each toebox. The important point is that all these shoes are variations on a particular design theme, which was originated by Diego Della Valle of the Tod firm.
If you read my previous “Piracy Paradox” post, you know that copyright law doesn't apply to most fashion designs, including these driving shoes. But what if it did? Would the Bacco Bucci, Minnetonka, Ecco, E.T. Wright and Ralph Lauren shoes be judged to infringe the Tod original?
I think they probably would. Copyright law gives to copyright owners the right to prohibit not only verbatim copying, but also the production of any work that is “substantially similar” to the preexisting copyrighted work. What is the major design element in the driving shoe? The sole that climbs the back of the shoe. Appropriate that, and mix it with the other elements of the shoe's design (i.e., the moccasin-style upper portion) and you create a shoe similar enough to very likely land you in copyright trouble.
Which is a great example of why copyright law and fashion do not — and should not — mix. The driving shoe was a trend in mens' shoes in spring 2005. In May of 2005 I went shopping at a Nordstrom in Paramus, NJ. In that Nordstrom I saw a table containing at least a couple of dozen driving shoes, all set out in a nice circle around the perimeter of the table. The fashion industry and the retailer were trying to send me a message. What was it? That at the moment driving shoes were “in the mode”, and that I might wish to pick one from among all the variations that suited my tastes and my wallet.
I bought the Eccos. They are a bit dowdier than the Bacco Buccis, but cheaper and more comfortable. Suitable for an academic.
If copyright law governed the fashion industry, would I have seen that table of driving shoes? It's hard to definitively address a counterfactual, but my suspicion is the thriving fashion industry we see now depends on the absence of copyright. Copyright's presence would, in my view, hurt not help.
That brings me again to H.R. 5055, a bill currently pending in Congress that would extend copyright to cover fashion designs. For all the reasons I've explained here, and that I lay out at greater length in a paper I've written with my friend and colleague Kal Raustiala, H.R. 5055 is misguided. The fashion industry's designs have never been covered by U.S. copyright, and the industry is doing great. Let's keep it that way.
Shoppers of the world, unite!