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January 31, 2006

There Goes the Neighborhood

Canal Street in New York will no longer be a regular stop for tourists seeking to purchase fakes if Louis Vuitton's parent company, LVMH, has its way.  The legal strategy of holding landlords responsible for illegal activity that takes place on their premises has yielded another settlement, with a group of landlords last week agreeing not only to prevent sale of counterfeit Vuitton handbags but also to hang warning signs and to allow monitors access to the shops. 

While LVMH has not yet convinced American authorities to penalize the buyers of counterfeits, as French and Italian officials began doing last year, the luxury goods manufacturer certainly wants consumers to think twice.  Following the settlement, Nathalie Moulle-Berteaux, intellectual property director for LVMH's fashion group, said:

Those seeking to purchase counterfeit Louis Vuitton goods on Canal Street must now face the danger of following a stranger down a dark alley or stairway to a hidden room, which serves as both a deterrent to shoppers who fear for their safety and a strong reminder that the sale of counterfeits is a crime.

Interesting perspective for a company that spends millions of advertising dollars creating demand for limited-edition items among female consumers.  No word on whether LVMH will actually be posting scary-looking goons down those dark alleys to deter illicit sales.

P.S.  Thanks to the bloggers of ShangriLaw (esp. La Dulcinea), Blingdom of God, and Stereoette for sending me several links on the settlement last week, as well as two articles in the Wall Street Journal this morning! 

January 30, 2006

The State of the Fashion Union: E Pluribus Plures

My fellow fashionisti,

A century ago, 1st Wave Feminism gave women the right to vote -- and the ability to breathe and move unrestricted by corsets and trailing skirts.  Designers like Counterfeit Chic's Patron Saint/Avenging Angel Coco Chanel took pride (and profit) in setting women free.

Michael Roberts,

In the latter half of the 20th century, 2nd Wave Feminism dramatically expanded our opportunities to make career and lifestyle choices -- and our ability to leave the house without a uniform of elaborately coifed hair, lacquered faces, restrictive "foundation garments," hats, and gloves.  OK, we also veered from one decade of shapeless, earth-toned, artsy-craftsy outfits to another decade of power suits with giant shoulders and floppy bow ties based on men's suits.  But the thought was there -- witness the recent rebirth of Diane von Furstenberg's 1972 woman-on-the-go wrap dress.

Today, a 3rd Wave is gathering momentum, carrying with it a commitment to individual creativity and playful paradox:

  • A boyfriend one week and a girlfriend the next?  No problem. 
  • Ivy League education for both future female CEOs and stay-at-home moms?  Check.
  • A career as a feminist ecdysiast?  Sure.
  • Piety and piercings?  Pourquois pas?
  • Chanel jackets with jeans, or flip-flops with evening gowns?  Naturally.
  • Smart women who love fashion (even while we thank our foremothers for releasing us from rigid conformity)?  Absolutely.  You've already met the reigning queens of this Carnivale, Fashion Tribes and Almost Girl, and many, many more blogistas, academics, journalists, fashion designers, and fabulous women in general, not to mention our presumably male fellow-travelers (on the internet, who knows?). 

In the realm of fashion health, we are developing a cure for repetitive dress disorder.  In the workplace, sports bonding is giving way to shoe bonding.  Around the globe, even women still under burkas are back at the beauty salon.  In short, we're experiencing

The Brave & the Bold #63, December 1965/January 1966

(One correction:  With all due respect to the graphic artists who gave us the Revolt of the Super-Chicks, it's not about dressing for men.  Modern women know that these super-sistas are doin' it for themselves.)

So go forth, create, contradict, and don't feel compelled to copy.  God bless the Fashion Union, and good night!

January 29, 2006

Kudos to Consumed

The New York Times' coolest columnist, Sunday Magazine writer Rob Walker of Consumed, reports today on streetwear designer Scott Nelson's "Mike" brand, an "homage" to Michael Jordan via the style vocabulary of Nike, Converse, etc.  And yes, those quotes are from your humble blogger.  Great column, Rob! 

Mike Louis Monojam

Reality Check for eBay

Reports of shady auctions on eBay are nothing new.  Not only is there a flood of counterfeit merchandise available -- think impossible-to-find, expensive items suddenly offered in every color at bargain prices -- but knockoff artists are getting ever more savvy.  Fake goods are often accompanied by equally fake receipts or certificates of authenticity.  (In my own limited experience on eBay, I've had photos of geniuine merchandise copied and republished alongside listings for fakes, and even one brazen seller who plagiarized my text.  And no, I didn't view being copied with interested academic detachment.  I surprised myself by being really ticked off at the possibility of my own sale being jeopardized.)

EBay responds to complaints by rights owners through its Verified Rights Owner (VeRO) program.  As Katie Hafner reports in today's New York Times, however, eBay refuses responsibility for the goods traded on its site: 

"We never take possession of the goods sold through eBay, and we don't have any expertise," said Hani Durzy, an eBay spokesman.  "We're not clothing experts.  We're not car experts, and we're not jewelry experts.  We're experts at building a marketplace and bringing buyers and sellers together."

Some manufacturers find this detached, "we're just a marketplace" approach inadequate. Third-party reports of fakes, moreover, generally go unheeded. 

As one might expect, there's a legal response:  Tiffany is suing eBay.  (We'll keep an eye on this one.)

Perhaps more interesting is the extralegal response detailed by Hafner:  consumer afficionados of certain brands are banding together to hunt down major sources of counterfeit goods and gather evidence from independent appraisers.  One costume jewelry collector is even described as having "no qualms about breaking [eBay] rules by contacting buyers about fakes she spots." 

In addition to the auction vigilantes described in the Times, other consumers have leveraged the internet to collect and share information about fakes -- Louis Vuitton should thank http://mypoupette.com, for example. 

In a world where the collective inventory of fakes -- and the number of sleazy merchants trying to pass them off as real -- far exceeds the powers of law enforcement, proactive buyers can play an important role.  In fact, these virtual communities of consumers, by disseminating information, targeting knockoffs and their sellers, and stigmatizing willing buyers of counterfeits, may be at least as strong a force as trademark law. 

January 28, 2006

Like Beauty, These Knockoffs are Only Skin Deep

The Italian word for makeup, "trucco," is the same as the word for trick -- a linguistic connection that always makes putting on foundation, etc. seem cleverly subversive.  The thing is, I prefer to think of a consumer choosing to create an illusion, not being fooled.

A range of new mass market beauty products, however, are imitating more expensive versions sold only at department and specialty stores, essentially free riding on the goodwill generated by the originals.  Compare Hylexin (left) with Nulexin (right).  Obviously, the packaging is similar, with inverse use of the same colors.  On their respective websites, both claim to be "the first product specifically developed to reduce the appearance of serious dark circles" under the eyes.  The marketing for both versions recalls pharmaceutical ads, with identical information about "clinical trials," but without ever actually naming the "functional compound" used in the product.  Both prominently feature the names of their parent laboratories, Bremmen Resarch Labs for Hylexin and Generix Laboratories for Nulexin.  And there's the twist:  the slogan for Generix is "Providing Affordable, Generic Versions of the World's Most Popular Formulations."  Oh, and the other difference?  $95 for Hylexin v. $39.99 for Nulexin.

Can Nulexin get away with copying Hylexin like that?  Well, the question, like so much of trademark and trade dress law, rests on whether the product creates "consumer confusion."  And that can be a tough call.  True, the boxes look alike, but Nulexin makes a point of proclaiming, "Same dark circle ingredients as Hylexin!"  So the design is clearly intended to make the consumer recall Hylexin, but with a disclaimer.

But wait, why can Nulexin use Hylexin's name, given that Hylexin claims trademark protection?   Under U.S. law, a series of cases dating back almost a century to Saxlehner v. Wagner, 216 U.S. 375 (1910), allows a trade name or trademark to be used for purposes of comparison with a competing product.  Copied perfumes have been notorious in this regard.  "If you like [insert Brand Name here], you'll love [Knockoff Name]!"

What about other intellectual property protections?  Isn't there a copyright problem with the identical language on the websites? That might be Hylexin's best argument against Nulexin, even though there are only a limited number of ways to express the same facts, but it won't keep Nulexin off the shelves.  As for patent, it's not clear that Bremmen has applied for one on their "functional compound"; they're certainly not announcing it if they have. 

So "lex" (right, Latin for "law") plays little role in the Hylexin v. Nulexin battle.  Consumers hoping to fight dark circles just have to keep their eyes open.

January 26, 2006

Knockoff News 3

A weekly (or thereabouts) collection of news about counterfeits, fakes, knockoffs, replicas, imitations, and copying in general from around the globe:

And because where there's an issue, there's a New Yorker ready to express an opinion:

January 25, 2006

Some Knockoff Artists Go to Jail, Others Go to Hell

The wildly irreverent and funny Blingdom of God site reports today on the Vatican's decision to enforce copyright in papal writings, including a brand-new encyclical about sex (who reads the others, anyway?).  To back up its claims, the Vatican reportedly sent one publisher a 15,000 euro bill for about 30 lines of text (including legal fees).  With prices like that, those had better be some pretty inspired words. 

The strange part of the Vatican's new awareness of intellectual property rights is that Christianity probably wouldn't have gotten very far if copyright (or related performance rights) had been around 2,000 years ago.  Christian culture, once it moved beyond its Jewish roots, was all about missionary work and permissive appropriation of the message, not excessive control.  Go out and spread the gospel?  Not if you have to pay royalties. 

Blingdom asks, where will all of this end?  What about knockoff papal rings and other jewelry, easily available at tourist shops outside the Vatican or online?  And how many Hail Marys do you have to say if you get caught buying?

Benedict XVI's ring

January 24, 2006

Runway or Catwalk?

If the contestants are designing "frocks," wearing "trainers," pulling on "jumpers" when it gets chilly, and occasionally getting their "knickers" in a twist, it must be Project Catwalk, Project Runway's British twin. 

So far, the Brits seem to party a bit harder than their Yankee counterparts, and some of the hardware store designs from the first episode veer further toward the conceptual art side of the art/fashion divide.  But the biggest difference seems to be a straight male camera crew and editing team.  Project Catwalk is all about the cleavage, and not just Elizabeth Hurley's infamous twin assets -- insured with Lloyd's of London perhaps? 

No word yet on whether further international cloning experiments are in the works.

Project Catwalk

January 23, 2006

Double Take

Last Monday at the Golden Globes, Reese Witherspoon looked lovely in a Chanel couture dress.  The problem was that another young, blonde acress, Kirsten Dunst, had also looked lovely in the same dress, at the same event, three years earlier.

Why should RW be upset that Chanel -- or her own stylist -- hadn't warned her of the earlier borrower?  After all, the idea behind fashion houses loaning gowns to frequently photographed starlets and socialites is to sell more of those gowns (as well as to draw attention to the brand as a whole).  And for those who can't afford the original, the knockoff artists who stalk winter awards shows will provide replicas in time for the prom.  A measure of the loan's -- and the celebrity's -- success is the number of people who covet the dress.

But wait.  Even a teenage prom-goer in a knockoff Oscar dress doesn't want her chief rival -- or even her best friend -- to show up to the same event in the same dress.  (And as McLuhan would remind us, the all-at-onceness of a modern media world reduces a three-year gap to naught.)  Just like RW, the prom-goer's cache comes in part from being the first among her peers to claim a particular design as her own.  As a celebrity actress, RW is more valuable if she presents a unique image.

In that case, why did Chanel pimp the same dress?  Well, the repeat play was likely a mistake, since Chanel doesn't want to send the message that wearing its gowns is a ticket to embarrassment on the red carpet, whatever the reason.  (A week later, rumors abound regarding which other "vintage" Chanel dresses have had multiple recent outings.)

On the other hand, Chanel is more interested in its own image than RW's, and the house is known for repetition of iconic designs.  If a dress is worn by an interchangeable series of young starlets, that perfect dress becomes the star.  The response of the Chanel publicity machine to the situation is revealing in this regard:  "A Chanel dress never goes out of style.  It's timeless."

Unlike the actress of the week.

January 22, 2006

Knockoff New York Tour

Today in Chinatown a group of chilly tourists clustered eagerly around their Big Onion tourguide.  Were they interested in urban history, hungry for culinary tips, or preparing to celebrate Chinese New Year?  Possibly.  But the topic of the moment was knockoffs, and the tourguide was ready with information about local availability of international brands like Rolex.  "The North Face jackets are really good," he added helpfully.  "I couldn't tell the difference."

January 21, 2006

Tom Waits for His Rights

Tom Waits is known for his distinctive, gravelly singing voice -- and his ongoing legal battle against commercial attempts to copy it.

The New York Times reports that last Friday a Spanish court awarded Waits damages in a lawsuit against Audi for imitating his voice and music in an advertisement; another case is pending against Opel in Germany.  But these are just the most recent of Waits' efforts.  Well over a decade ago, he won a similar case involving both U.S. federal and California state claims against Frito-Lay, 978 F.2d 1093 (9th Cir. 1992).

Waits has also been using that famous voice to repeat what his lawyers presumably told him, using the European civil law version of the legal argument: 

 "I have a moral right to my voice. It's like property - there's a fence around it, in a way."

He also added a personal note, however:

Mr. Waits said there were two kinds of imitation. "I don't mind if someone wants to try to sound like me to do a show," he said. "I get a kick out of that."

"I make a distinction," he added, "between people who use the voice as a creative item and people who are selling cigarettes and underwear. It's a big difference. We all know the difference. And it's stealing. They get a lot out of standing next to me, and I just get big legal bills."

So all those of you singing in the shower are safe, for now.

Tom Waits

P.S.  No word on whether Waits intends to expand his legal efforts to any future copying of his wardrobe.

January 20, 2006

Overheard at Barneys New York

Three tall, expensively highlighted, surgically youthful women stood together this afternoon in the Prada boutique at Barneys, speaking loudly. 

First:  Ooooh, that's the only dress I saw at the collections that I absolutely have to have.

Second:  Miuccia Prada is so genius!

Third:  Well, Theory always knocks off Prada, so then it's reasonable.

Apparently they hadn't noticed the salesperson behind them -- or didn't care.  Either way, Prada needs to reconsider its back row.

January 19, 2006

Lost Horizons

A  wonderful trio of Yale Law School fashion bloggers, collectively known as ShangriLaw, has invited us to a Carnivale celebration on the Island of Superfantasticness.  Just one catch -- it's for life.  So what's a girl to pack?

After sitting for some time on top of a virtual heap of mentally summoned and discarded items, I thought about a recent conversation with my first-year Property students at Georgetown (where I'm visiting this semester).  Among the grand theories of property, the universe, and everything that are part of our opening weeks is Professor Margaret Jane Radin's concept of "Property and Personhood," from a 1982 Stanford Law Review article of the same name.   In it, she spins a now-classic legal theory from the basic intuition that "[m]ost people possess certain objects they feel are almost part of themselves."  Typical of these adjuncts to personhood are things we wear, which represent our physical bodies and our self-perceptions to the world and may also evoke specific memories. 

In packing for our tropical exile, then, the trick is to choose whatever will represent not only our personhood but also (adding to Prof. Radin's invocation of Hegel a thought from Heidegger) our most authentic selves. 

So what's coming with me to the Island?  A treasured heirloom jewel, a signature pair of heels, or some other yet-to-be-designed but sure-to-be-coveted objet?  Well, let's just say that's a personal property question.  ;)

And of course, thanks to the superfabulous Manolo and the brilliant Almost Girl for their Couture Carnivale concepts!

Knockoff News 2

A weekly (or thereabouts) collection of news about counterfeits, fakes, knockoffs, replicas, imitations, and copying in general from around the globe:

And the award for worst legal advice goes to:

Even if you tell your customers that the goods are fake, you're still in violation of trademark law.  Sorry.

January 18, 2006

Counterfeit Cupcake Caper?

Boing Boing reports today that independent designer Johnny Cupcakes claims to have been ripped off by Urban Outfitters.  Apparently Johnny discussed the possibility of doing business with the national chain last year and submitted samples, which were never returned.  Recently, a friend emailed him to say that Urban Outfitters was selling one of his designs under their own Urban Renewal label.

The jet dropping cupcakes on the left is Johnny's original design; the one on the right is manufactured by Urban Outfitters:

Johnny Cupcakes T-shirt

Urban Outfitters T-shirt



Worse still, according to Johnny this is not an isolated instance of Urban Outfitters appropriating the designs of startup artists.

So, can't Johnny sue?  Doesn't he have a copyright in his design? 

Well, yes -- and no.  Johnny has a copyright in the design on the front of his T-shirt (though not in the T-shirt itself), but he does not own the idea of a jet dropping cupcake bombs.  Copyright law protects only Johnny's particular expression of the concept, and the Urban Outfitters design may very well be different enough to avoid legal censure. 

Johnny Cupcakes has no intention of being sweet about this "awful, scummy situation," however.  Instead, he's using the internet to harness social norms against copying by asking those who read his site to repeat his story, shun "cheating" companies, monitor Urban Outfitters for possible copying, and especially buy T-shirts direct from the source. 

He may wield aluminum cupcake pans instead of brass knuckles, but with a name like Johnny Cupcakes, you know this young designer means business.

January 16, 2006

The French Paradox

Chanel is a major global brand.  It gets knocked off.  It doesn't do the knocking off -- except maybe it does. 

Chanel currently stands accused of counterfeiting, by one of its own suppliers.  In a French court last week, World Tricot claimed that Chanel had rejected a WT knitwear sample and then gone on to produce an item of the same design.  The president of WT spotted the item in question, a white crochet vest with floral and shell patterns, in the window of a Chanel boutique in Tokyo. 

Lawsuits between manufacturers and major brands are nothing new.  The brand name company might challenge the quality of certain items, the supplier might miss delivery dates, or an unscrupulous manufacturer might produce extra items and distribute them through discount channels.  But in those cases, legal action would be most likely initiated by the design house, not the other way around.

Chanel claims that the initial sample was created according to its own instructions, presumably implying that it owns the design.  The commercial court wasn't ready to make that determination, though, urging both parties to settle their dispute through mediation to avoid potential "indirect consequences to the profession."

Or maybe the judge just couldn't believe what he was hearing. 

January 15, 2006

True Love, Fake Photos

Elton John was presumably a fabulous bridegroom -- but perhaps not quite as fabulous as the photo spread in the Daily Mail would suggest.

Photographer Alison Jackson created the image, using lookalikes in place of Sir Elton and Donatella Versace (arranging the gown). 

Can she do that?  Don't celebrities "own" their images?  Well, yes, depending on the jurisdiction "rights of publicity" can limit use of celebrity attributes -- but the law does have a sense of humor.  And my guess is that the photo hasn't been used to sell too many wedding gowns.   

Keep on Truckin' -- At Your Own Risk

New York State Senator Frank Padavan and Assembly Member Mark Weprin, both of Queens, have introduced a bill that would provide for seizure and forfeiture of vehicles used in the trafficking of counterfeits.  So if you're thinking about loading up the trunk on Canal Street with "superfakes" and driving out to Westchester to host a purse party, consider borrowing your ex's car.

January 14, 2006

Pause for Station Identification

In response to inquiries from family and friends about the correct pronunciation of the name of this site, allow me to clarify the following: 

     I am not the "Counterfeit Chick."    



Nor am I the "Counterfeit Sheik,"

although that is closer to the right pronunciation.



The name is "Counterfeit Chic," borrowing a bit of French. 

Why?  Because over the past few centuries, the French fashion machine has (correctly or not) propagated the idea that Paris is the capital of style.  Because my own name predisposes me to alliteration.  And because the site's Patron Saint/Avenging Angel has imbued the double "C" with a certain "je ne sais quois." 

January 12, 2006

Even if It's Fake, Don't Fake It

Question:  The fab new handbag you're about to buy for Spring 2006 is __________.

Answer:  (a) true

               (b) faux

Answer Key:  Actually, it's up to you.  (You knew it was a trick question, right?)  If you want the genuine article, that's between you and the all-powerful salesperson in charge of the waiting list.  If you make up your mind to buy a knockoff, most likely neither intellectual property laws nor social arguments can stop you.  But whether you're going high or low, buying or selling, don't even try to pass the faux version off as the real deal -- faking it is a major Fashion Don't.  (And the core of a legal don't as well.) 

Todd Goldman lithograph

A couple of years ago, after I dropped a reference to counterfeits into a talk, a fashionable and smart colleague walked up to me and said, "You're so right!  It's all about the handbags!"  Professor X went on to tell me about the fake Burberry she'd just bought.  "But," she added, "it's not about pretending.  It's about showing everybody that it's fake, how you can tell, where you bought it, and what you paid for it."  The same thing happened when I shared a cab in New York with another professor, and then again at another conference, and so on.

Translated into legalese, Professor X was referring to the fact that claims of trademark or trade dress infringement (see FAQs for details) are decided in large part on the basis of "consumer confusion."  The core idea is that if consumers aren't confused about who really manufactured the product, there's no violation.  Lies from an online seller are one thing; obvious counterfeits on Canal Street are another.  (Of course, it gets a lot more complicated than that, and in court luxury companies produce a lot of evidence to show that replicas do cause confusion and related harms).

Among fab fashion editors and dedicated fashionisti, faking it seems to be equally taboo -- for different reasons.  Last year a talented and thoughtful editor at a major magazine explained to me that despite all of the "Splurge or Steal?" and "The Look for Less"-type features, she and her colleagues almost never carry fakes or even inexpensive brand-name versions of the latest "it" bag.  She added, "Well, there is one girl who carries a fake Birkin and acts like it's real, but everybody knows and talks about her." 

The bottom line:  Some adore the real deal, others revel in replicas.  But faking it is definitely a Fashion Don't

P.S.  I can't think about FDs without mentioning the worst perennial Fashion Don't. Ever. Wear. Strappy sandals with sheer stockings.  We've evolved past webbed toes by now.

P.P.S.  Thanks to the superfabulous Manolo for turning our FDs into a Carnivale of Couture!

January 11, 2006

Donna Karan's tribute to Kal Ruttenstein

As Kal Ruttenstein's favorite silver sneakers stood empty on the stage at Carnegie Hall this morning, Donna Karan rose to offer a tribute to the late Bloomingdale's fashion director.  After the designer spoke movingly of Kal's dedication to young talent and his acts of friendship, she paused to remember his penchant for commissioning fashionable copies:

The one thing, though, that I really didn't understand is how he delivered the clothes that we did before our clothes.  He was really the best knockoff artist there was.  And I guess until I learn how to deliver on time, I'll have to connect to Kal.
And I suspect that somewhere Kal was listening to a great deal of applause, and laughter through tears.
Cesare Paciotti silver sneaker

Knockoff News

Introducing a weekly (or thereabouts) collection of news about counterfeits, fakes, knockoffs, replicas, imitations, and copying in general from around the globe:

And a couple for laughs:

If you come across additional Knockoff News, please let me know.

January 10, 2006

Requiescat in Pace: Kal Ruttenstein

Bloomingdale's will honor its dearly departed fashion director, Kalman Ruttenstein, tomorrow at 11:00am in a memorial service at Carnegie Hall in New York. 

Kal Ruttenstein

Although Kal was a well known and much loved star-maker in the fashion firmament and was recently honored by Legal Momentum at its annual Equal Opportunity Awards Dinner, the same designers he championed sometimes had cause for complaint.  In the interests of keeping Bloomindale's current and offering cutting-edge fashion at multiple price points, Kal not only stocked brand-name knockoffs but even solicited them from bulk manufacturers.  Sometimes these copies of runway fashion appeared at Bloomie's even before the real thing did.  As the New York Times reported in Kal's obituary, "Gianni Versace once banned Mr. Ruttenstein from a fashion show because Bloomingdale's carried similar men's wear designs under the store's own label." 

Let's hope that Geoffrey Beene isn't staffing the Pearly Gates when Kal arrives.  The celebrated designer, who passed away in late 2004, so disliked being copied that he kept a file on those allegedly guilty of copying him.

January 09, 2006

FashionTribes: Advice on Originals from an Original

Just before the holidays, New York Times fashion critic Cathy Horyn took the fashion industry to task for being "two clicks behind" the digital revolution, at least when it comes to marketing. 

The addictive, interactive online magazine FashionTribes, however, is at least two clicks ahead.  And when the originator of this original site, EIC/Publisher Lesley Scott, gives advice on avoiding cheesy knockoffs and choosing affordable originals instead, it's more than worth a click.

One further thought.  In the ongoing battle against counterfeits, which is the doomsday weapon:  (1) an army of pinstriped intellectual property lawyers filing briefs, or (2) a select company of disgusted fashion editors armed with fiery words of scorn for the pretenders?  In other words, legal threats or social pressure?

January 08, 2006

Times Past

Each week in the New York Times Sunday Styles section, Bill Cunningham offers a look at fashion "On the Street."  Today it seems that women are walking out of 17th-century Spanish and 19th-century Japanese portraits onto catwalks and sidewalks, each wearing enough billowing silk to create a small (albeit luxurious) tent or a hot air balloon.  (With these options available and Heidi Klum showing off her lovely rounded figure on Project Runway, it looks like  great season to be pregnant!)

Cunningham traces modern appearances of this infanta silhouette back to Balenciaga in 1957 -- and offers a belated slap on the wrist to Givenchy for doing versions of his own a mere six months later.  He also shows recent versions by Marc Jacobs and Olivier Theyskens of Rochas, as well as the modernized sacks and chemises offered by Balenciaga's current designer, Nicolas Ghesquiere.

Balenciaga Spring 20006

Which leads me to several questions:  is copying the historic designs of the founder of your own house more acceptable than borrowing the style vocabulary of another designer, especially your contemporary?   Is perpetuation of the house DNA really creativity, or just good brand management?  And why exactly do so many people call Karl Lagerfeld's work for Chanel "genius" when so much is really the work of Mademoiselle herself -- is it just his rejuvenation of the brand and sense of the zeitgeist? 

Law Profs, Part 2

The AALS conference is over, and I've had my 15 minutes of ... well, surely not fame, but air time.  With discreet reminders at the 5-minute and 2-minute-remaining marks.

My extremely gifted fellow panelists for "A Cultural Analysis of Intellectual Property" offered fascinating and thought-provoking remarks, with Julie Cohen offering a description of how cultural theories, and in particular science and technology studies, can move intellectual property theory beyond the two predominant schools of natural rights and economics; Sonia Katyal developing a new corporate personality/identity theory of trademark; and anthropologist Alexander Bauer reminding us all just how inadequate the law is when it comes to protecting cultural heritage.  Mark Lemley, the devout economist of the bunch, did an amazing job as commentator, managing to pointedly but constructively eviscerate us all, even with little or no prior notice as to what we would say. Thanks to everyone, especially Madhavi Sunder, who organized the panel but was unable to attend.

My own humble ideas, as you know from the last post, revolve around the need to consider areas of creativity -- like fashion -- that have historically received little or no IP protection if we are to develop grand, sweeping theories of IP.  After some general ruminations about human creativity and the role of IP law, I offered a list of seven cultural attitudes that have contributed to lower levels of protection for clothing/textiles in the the U.S. (and probably apply to other creative fields as well).  In very brief form, here they are:

1.  Gender -- Since the Industrial Revolution, fashion has been considered a girl thing.  (And more recently, a gay male or a "metrosexual" thing.)  For many reasons, this leads to lesser legal protections.

2.  Class -- Dress is a status marker; Americans are culturally resistant to class divisions.

3.  Art/Craft distinction -- IP law protects both, but this division allows some things to fall through the cracks.

4.  Verbal/Visual distinction -- At least since the Englightenment, words are associated with reason and high status; images are associated with emotion and lower status.  Guess where fashion falls.

5.  Mind/Body division -- We exalt the mind over the body in may ways -- and clothing represents the body to the world. 

6.  Permanent/Ephemeral distinction -- America's Protestant work ethic, among other things, leads us to place lesser value on things that are "frivolous" and disappear quickly, like fashion.

7.  National Culture -- This is really a composite category.  For many reasons, including the historical development of the clothing/textile industry, America (unlike France, for example) has not seen preeminence in the creation of fashion as part of our collective identity. 

There are certainly other cultural categories that we could consider here.  I thought about including race/ethnicity here, as I have in other work -- (1) the copying of styles from other cultures and (2) the racial/ethnic identity of those who work in the clothing/textile industry are just a couple of the relevant issues.  (If you will be in New York in the next few months, check out "A Perfect Fit: The Garment Industry and American Jewry, 1860-1960" at Yeshiva University Museum or the perenially fabulous tour "Piecing it Together:  Immigrants in the Garment Industry" at the Lower East Side Tenement Museum.)  But sometimes you only have 15 minutes.

After I spoke, Chief Economist Lemley cautioned against assuming that just because we value something highly, it is (or should be) protected with property rights.  Or in my case the reverse:  we can't necessarily assume that just because something isn't protected by legal rights, it isn't valued by the culture as a whole.  He's correct, of course -- to a degree.  The "if value, then rights" argument isn't a sure thing.  But in the case of the clothing/textile industry, there's substantial historical evidence that low status creativity led to lower legal protections -- and Mark did give me the benefit of the doubt on that score. 

Happily Rebecca Tushnet was in the audience, and she reminded us all of lessons from feminist jurisprudence:  it's interesting that just when women are about to get equal rights or equal protection in a certain area, protecting that area suddenly becomes unimportant.  In addition, the argument that we don't offer intellectual property protection to something because we value it *so* highly that we want it in the public domain is a lot like saying that we value women *so* highly that we want to keep them safe at home.  You said it, sister!

This is a long message but a brief description -- please email me if you'd like to chat further.  Also the entire session was recorded and will be made available as a podcast within a few weeks; if the AALS allows, I'll post the link. 

And now, finally, I can unpack and read the Sunday paper!

January 06, 2006

Law Profs Gone Wild

What happens when you release law professors across the country from their (academic) institutions, let them all travel to the same place for a week, and record what happens? 

Well, just say that it probably doesn't add up to a best-selling video.  Mostly, we talk.  On panels, behind podiums, and definitely in the hallways. 

I'm spending a very hectic few days at the annual Association of American Law Schools (AALS) conference -- please excuse me if I haven't answered email -- and my task this afternoon is to talk as much as possible in a short time about a vast subject.  I'm on a panel called "A Cultural Analysis of Intellectual Property," and I'm planning to say that if you want to create a theory of IP, you have to consider areas that have historically received little or no effective IP protection.  Like the clothing & textile industry, for example. 

This could be difficult because (1) at the moment, law profs are more concerned with overprotection than underprotection, and (2) the fashion industry, unlike for example the music industry, and despite massive contributions to the global economy and major internal discussions regarding IP, isn't on the radar of most legal academics.   (Of course, you would know that by looking at us.  Guys, some of those ties aren't vintage -- they're scary.) 

So wish me luck -- and I'll keep you posted.


January 05, 2006

Project Runway: The (A)moral of the Story

Last week on Project Runway, Daniel Franco was praised for acting like a responsible team leader -- and then cut.

This week, the elimination came down to Lupe, who created an original design that unfortunately might have landed socialite Nicky Hilton on the worst-dressed list (refrain from catty comment here),

Project Runway - Guadalupe's dress

and Marla, who was strongly criticized for copying a Chloe dress that Nicky had worn previously.

Project Runway - Marla's dress

So who's out, the original risk-taker or the safe knockoff artist?  Exactly.  The copyist stays.  What kind of a lesson is that for future designers (or their lawyers, for that matter)?


The fabulous expert patternmaker Kathleen Fasanella has very generously mentioned Counterfeit Chic in her blog, Fashion-Incubator, and (even better!) has allowed me to answer a few questions about IP from her readers.  Fashion-Incubator is a wonderful read, even for a non-expert in technical matters, and Kathleen is extremely entertaining and informative.  Check it out! 

January 04, 2006

Trends are "In" for 2006

Hemlines are up/down for spring.  Flats/platforms/wedges are the new "it" shoe.  White/brown/griege is the new black. 

We dress to express, but at the same time we want to be au courant.  Nobody likes a copycat, but nobody likes an oddball either.  Pity the designer who is accused of being unoriginal; pity her even more if she shows color when the fashion gods have declared that neutrals are the way to go.  And thank heaven for the various glossy fashion bibles that keep us up to date on the latest rules.  Without collective change, there would be no fashion industry.

The only sure prediction for 2006 is that somehow, most of us will figure out how to dress like everyone else does.  Trends are "in."

As the superfabulous Manolo reminds us, "The fashion it is not the nuclear rocket brain surgery."  Still, there may be something to the whole cognitive science thing.  Some 30 years ago, animal behaviorist Richard Dawkins came up with the idea that bits of cultural information in our minds, or "memes," are like our genes -- they want to replicate.  If an idea is unappealing, nobody copies it and it dies; if it's a good one, it gets passed around.  So we all end up humming the same tunes, repeating the same buzzwords, and wearing the same fashions.  Or -- if you believe Dawkins -- the fashions wear us.

Of course, nobody likes to be colonized by a collection of self-replicating ideas.  As the brilliant Almost Girl -- a woman destined to be the preeminent fashion theorist of Gen Y -- reminded me yesterday, we should take our celebrity academic theorists with a grain of salt.  So, go ahead and wear whatever you like in 2006.  Then the trends will have to follow you.

January 03, 2006

Is Grey the New Black?

Law is often ambiguous or subject to interpretation, but sometimes the black letter rules are clear:  it is illegal to place false labels on knockoffs or to sell replicas as the real thing.  We can debate the merits of the law, discuss the purpose of the law, or ignore the law, but the law still sees certain actions in black and white terms.

There is still, however, quite a bit of grey area in the law -- areas of uncertainty, where both the rules and questions of right or wrong are unclear.  (I suppose law is like mold; the fuzzy grey areas are the ones growing fastest.)  For example, how should we categorize a clearly labeled handbag from an established but inexpensive brand that resembles a much more expensive, exclusive design?

Wilsons Leather BagDesigner Ella has raised this issue recently in not one but two blogs, Pursed Lips and Kiss Me, Stace.  She fell in like (let's reserve love for a grander passion) with and bought the Wilsons Leather Turn-Lock Handbag -- which just happens to resemble the iconic Hermes Birkin (now there's a love object!).  Enter guilt -- but not too much guilt, as one retails for $60 on sale and the other starts at nearly $10,000, if available.  In addition, Ella finds the details of the Wilsons more suitable for her needs.

From a legal perspective, Wilsons is pushing the envelope but probably doesn't have too much to worry about.  There are substantial differences between the two bags (the Wilsons zips at the top, for example), so a court would probably consider the likelihood of consumer confusion to be low.  Futhermore, Hermes has much more pressing concerns in the realm of copying.

From a normative perspective, is there anything wrong with the Wilsons?  Well, that's up to each consumer to decide.  After all, all designers are "inspired" by others, whether they admit it or not, and there are only so many ways to make a receptacle for carrying around the bits and pieces of daily life, a.k.a. a purse.  Still, certain designs are more recognizable and more creative than others.

An informal study of what degree of copying is considered "wrong" within the fashion community leads me to list the following basic objections:

1.  Too literal.  Inspiration is fine, line-for-line copying is cheap and uncreative. 

2.  Too close in time.  It's one thing to reinterpret a 1960s Courreges, it's another thing to knock off last season's Prada.

3.  Too similar a market niche.  H&M or Zara can get away with much more than, say, Ralph Lauren copying YSL.  Issues of competition aside, we simply expect more from expensive design.

Too much grey area?  Well, that's why we have lawyers -- and editors, critics, tastemakers, fashionisti, bloggers, discerning consumers, and you.

January 02, 2006

False Diplomacy

Several news organizations, including Forbes, recently reported that the independent state of Narnia had walked out of the current round of WTO trade negotiations in Hong Kong.  The issue?  Pressure on Narnia from the U.S. and the E.U. to liberalize its clothing/textile sector. 

A bit of advice to the media:  don't believe every press release you read. 

Narnia is not a real country.  It does not have a garment industry.  And just to be clear, The Lion, the Witch, and the Wardrobe is a children's book in the Chronicles of Narnia series by C.S. Lewis and a new Disney movie, not another fictionalized tale of life at Vogue.

I'll Show You My Knockoff...

...if you'll show me yours.


Business journalist Tim Phillips has been busy writing a book on the evils of the knockoff economy, reviewed in yesterday's Boston Globe.  No word on exactly what the shadowy figures on his book cover are doing.

January 01, 2006

Culture Clash

Today's New York Times Magazine offers the following out/in list for 2006, courtesy of Princeton philosopher Kwame Anthony Appiah:

Appiah's article goes on to challenge the thinking of cultural "purists" like those at Unesco who, he believes, wish to stop globalism and trap local peoples in their old cultural ways, all in the name of preserving human diversity.  According to Appiah, "Talk of authenticity now just amounts to telling other people what they ought to value in their own traditions."  Similar arguments have been made by proponents of international trade and economic development for some time.  Stop fighting Coca-colonization -- people everywhere want to drink Coke.

Original or not, Appiah has a valid point.  Or rather, half of a valid point.  Certainly, choices regarding the hybridization of culture should be the provenance of the people living it; moreover, some behaviors defended in the name of "culture" are indefensible from a liberal humanitarian perspective. 

Appiah ignores the other side of the issue, however:  many individuals do identify themselves as part of a group and do wish to protect the authenticity of the group traditions, especially against outside appropriation.  Some things, the argument goes, should not be copied, should not be copied badly, or, if they are copied, should acknowledge their source (financially as well as verbally).  Appiah's own native Ghana, for example, has had difficulties protecting its traditional textile patterns against cheap foreign copyists.  Corporations can protection their "traditions" in the form of trade secrets or trademarks; why shouldn't communities be able to engage in analogous branding exercises, with international encouragement and assistance?

Culture is, of course, fluid.  As I have written elsewhere, there are many social benefits that stem from this fluidity.  Under a global scheme that respects only individuals and "contamination," however, the processes of collective cultural creativity are devalued and creators' ability to balance the authenticity of cultural products against harmful forms of outside appropriation is lost.