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April 30, 2006

Kaavyat Scriptor

When the Harvard Crimson reported last week that sophomore Kaavya Viswanathan's novel, How Opal Mehta Got Kissed, Got Wild, and Got a Life (2006), contains a number of passages that are "strikingly similar" to two books by Meghan F. McCafferty, Sloppy Firsts (2001) and Second Helpings (2003), the alleged plagiarism drew national attention.  On Friday, the New York Times reported that publisher Little, Brown would recall the offending book, which had apparently been part of an extraordinary $500,000 two-book deal and had been optioned by Dreamworks for a movie.  Viswanathan has apologized to McCafferty.

Deliberate or not, the plagiarism was obvious.  But apart from the money and publicity, it was nothing that doesn't happen among students every day.  The academic year is ending, final papers are due, and professors (some of whom have been known to be a bit sloppy about citation themselves) are on the lookout for suspiciously familiar works.  The resources available online are all-too-tempting for some students, but the web also makes them easier to catch.  My experience, unfortunately, is that most students who copy are genuinely sorry -- that they've been caught.

The more interesting issue, however, is what constitutes illicit copying within a specific genre.  Even while apologizing, Kaavya maintained that she was writing about her own experiences.  When the book was withdrawn, she and the publisher announced that they would republish with the offending passages rewritten.  As one publishing executive noted in the Times on Thursday, "The teenage experience is fairly universal." 

Had Meghan McCafferty filed a copyright claim, however, a federal court would've been called upon to determine not only how literally certain passages had been lifted (not exactly a challege here), but also the relevance of the similar plots (girl trying to get into elite college), which cannot in the abstract be copyrighted.  This inquiry takes on additional significance in the postmodern era (nod to Foucault) and in light of the involvement of a "book packager" like Alloy Entertainment.  (Check out Professor Laura Heymann's engaging article, "The Birth of the Authornym.")  Can we still tell an "original" from a "copy," assuming that we ever could? 

Actually, yes.  Authors, professors, lawyers, juries, and judges manage this all the time, whether the component parts of the creation are words, musical notes, or lines of software code.  Despite the near-universal fashion among U.S. law professors of attacking intellectual property protection as too extensive -- a position with which I have some degree of sympathy -- even academics don't usually argue that literal copying can't be identified.

In the case of fashion design, however, some people seem to be arguing exactly that.  Communications Professor Siva Vaidhyanathan, for example, told the Marketplace radio program that if fashion is subject to intellectual property protection, "there will be so many ridiculous lawsuits where courts will have to decide between the differences in ruffle (a) and ruffle (b) or hemline (a) and hemline (b)."    

My guess is that Vaidhyanathan wouldn't have found a copyright lawsuit involving words rather than ruffles "ridiculous," even if he has joined many others in disputing the legitimacy of intellectual property protection overall.  Personally, I'd find hemlines easier to distinguish than I would musical progressions.  But the point is that a copy is a copy.  And while pointy-headed intellectuals (myself included) and lawyers may engage in lofty debate about what constitutes copying, a creator's peers -- at Harvard or on Seventh Avenue -- know the score.

April 28, 2006

More on a Big Challenge from a Petit Main

Several months ago, Counterfeit Chic noted a legal challenge to Chanel by one of its suppliers, the small knitwear company World Tricot.  In a reversal of Chanel's role as the outraged victim of counterfeiting, the couture house was charged with having stolen World Tricot's sample design for a white vest crocheted in a flower pattern.

The middle column of today's Wall Street Journal has an update on that case, which failed to settle through mediation as recommended by the judge.  Christina Passariello's WSJ portrayal is quite sympathetic to World Tricot founder Carmen Colle, a former social worker who established the business in 1987 in order to provide jobs for poor women and immigrant refugees in the French town of Lure.  (Think Project Alabama, with a European accent.) 

Win or lose -- a judgment is expected within a couple of weeks -- Ms. Colle's David v. Goliath challenge may have cost her the business.  Chanel, which in the 2004/2005 fiscal year provided 89% of World Tricot's business, has no plans to place further orders with the company, and other couture houses have backed away as well.  To date, Ms. Colle has been forced to lay off 20% of her workforce.  The WSJ reports: 

Suing the fashion giant "was a very difficult decision," says Ms. Colle, tearing up behind her gold-rimmed glasses.  "But if I don't fight, I'm just an accomplice." 

Undaunted, Ms. Colle has founded her own retail knitwear brand, Angèle Batist, which she shows during private viewings -- and apparently includes Senator Hillary Clinton among its clients.  Brava!

April 27, 2006

Taking Liberties with Libertine

Maybe Allen B. Schwartz just wants an award of his own.

The notorious knockoff artist appears to have a penchant for award-related apparel, most notably the gowns worn by Oscar-nominated starlets.  Now a lawsuit filed last week in federal court alleges that he has also copied the work of designers Cindy Greene and Johnson Hartig, known collectively as Libertine.  The company launched in 2001 and received widespread recognition in 2004 as one of ten finalists for the first CFDA/Vogue Fashion Fund award, which supports emerging designers.  Their label and a version from Allen B. Schwartz are below -- look familiar?

Of course, Libertine's creative approach to design has been mimicked before.  Their signature reworked garments, with distressed seams and sometimes macabre screen-printed graphics, seem irresistible to both consumers and copyists -- a problem when many of the items are intended to be one-of-a-kind.  Back in November 2004, Cindy and Johnson told Vogue that their low point in fashion was "being knocked-off by someone we thought was a friend."  Schwartz, by contrast, doesn't bother with such social niceties.  Here are more examples from the Libertine lawsuit, alongside their A.B.S. counterparts:

If life in the fashion lane were a Lifetime movie, we'd ultimately learn that Allen Schwartz was a frustrated, lonely child who never quite won the big spelling bee, was teased when he tried out for track, and had to wear a too-short tux to the prom (alone, of course).  Thus psychologically scarred, his character would've turned to a life of copying -- and legally mocking -- the winners.  Cue some actual creative expression, celebrated by all, and redemption would ensue.

In reality, he's probably just a guy who figured out that he could make a lot of money copying other people's designs on the cheap -- at least unless and until Libertine or the law finally catches up with him. 

P.S.  Note to Libertine:  Love the one-of-a-kind concept, really love it.  But it can lead to some strange consumer behavior as well.  Someone actually reached into my dressing room at Barneys while I was changing to try and grab a certain dark blue velvet blazer with frayed edges and a white cityscape printed around the hem.  Have you considered a diffusion line?

April 25, 2006

Pope Pirate I ?

Which is worse -- a pope who wears Prada, or one who wears Prada knockoffs?

According to an article by Stacy Meichtry in today's Wall Street Journal, Benedict XVI's red "Prada" loafers, which have attracted a great deal of attention, may not be the real thing:

The senior Vatican offical says the loafers were actually made by the pope's personal cobbler.  But Prada has refused to confirm or deny the reports, allowing the press speculation to continue.  A spokesman for Prada said the fashion house lacked "the necessary elements" to make an accurate determination.

In other words, only the pope's confessor knows for sure.  And he's not telling.


April 24, 2006

Knockoff News 15

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

And from the "So, what else is fake?" department:

April 23, 2006

Where's the Blog?

My apologies for the brief hiatus at Counterfeit Chic.  It's conference season in the ivory tower -- something that happens all year long, but especially toward the end of the academic year.  Your humble blogger has spent the last few days back at Yale thinking about saving the world (as opposed to what to wear while doing it).  Check out the Information Society Project's Access to Knowledge conference proceedings (including an A2K wiki!). 

P.S.  OK, we didn't spend all of our time figuring out how to save the world.  Check out the notes on Professor Eric von Hippel's presentation on the informal norms against copying among French chefs (and discussion of how norms can substitute for intellectual property protection).

April 20, 2006

From Opium Wars to Handbag Wars

Chinese courts are busy with IP suits involving luxury goods this spring.  Here's the latest:

Hat tip to The Trademark Blog and to IP Dragon (twice).

April 19, 2006

Pineapple Pirates

Pineapples may be a longstanding symbol of hospitality, but Ananas handbag designer Jennifer Baum Lagdameo finds that some competitors are all too comfortable with helping themselves to her original designs. 

She and her partner, Miwako Washio, created their stylish Furoshiki bag 2 1/2 years ago and continue to produce it in multiple colors ($285).  Recently, they've been informed that the signature bag and its larger sibling, aptly named the Grande ($375), have beeen knocked off by at least three (and possibly more) retailers. 

Check out the Bally Halter bag from Fossil (with slightly rounded corners, $148),

the Strangelove bag from vegan accessories boutique Matt & Nat (a virtually identical version in two sizes, $90 & $110) -- apparently the ethical treatment of animals is one thing, while the ethical treatment of fellow designers is quite another,

and the Kaya bag from Delia's (with a few beaded strips, the cheapest of all at $22.50).

While Jennifer's initial instinct was to be flattered or amused, she stopped laughing when Ananas lost both wholesale and retail orders as a result.

The legal response?  Silence.  While Ananas is a successful young company, the Furoshiki bag probably isn't immediately recognizable to most consumers -- so as long as the label isn't copied, Jennifer and Miwako will have a tough time getting protection, at least under current U.S. law. 

So what's a creative and talented designer to do?  When life gives you lemons, make lemonade.  And when life slashes your pineapples, break out the tiny paper umbrellas.

April 17, 2006

Designer Identity Theft

Some people steal fashion designs, others steal entire identities.  You can find Project Runway contestant Kara Janx and her unmistakably cool designs online -- but not at "her" MySpace site. 

According to a reliable source, the already copied downtown designer has NOT in fact developed a sudden affinity for rainbow "Louis Vuitton" wallpaper, lip-shaped cursors, and unflattering photos.  Which is good news for her fans. 

April 16, 2006

Knockoff News 14

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

And from the poor excuses department:

[Commerce Minister Bo Xilai]  suggested that Hollywood star Sylvester Stallone's inferior kung fu could be one reason why so few people in China watched legal U.S. films.

Rumor has it that the commerce minister also claims that the dog ate his homework.

April 14, 2006

Smug Shopping? Call it "Label Ethical"

Feeling a bit guilty about blowing a significant portion of the rent on a designer handbag? 

In last month's issue of New York Moves, Bethany Seabolt offers the perfect rationale.  Her article, "The F-Word," chastises New Yorkers for setting a bad example when it comes to buying -- and bragging about -- counterfeit goods.  After describing harm to designers, the criminal element, and lost tax revenues, she concludes:

These tourists are wandering Canal Street so that they can mimic the images that our City sends out.  My impulse is to help high-end retailers develop an ad campaign along the lines of "If you can't afford us, we don't want you," but somehow I think that's not the image they're going for.  Seriously though, New York women can set the trend for this solution just as we do for so many other things.  I propose the buzzphrase Label Ethical.  We'll all say, "Oh, nice bag.  Is it label ethical?"  Remember, clothes may make the man, but the woman makes the handbag. 

So that bag isn't a splurge -- it's a symbol of City-centric urban pride, fashionable superiority, ethical sensitivity and social activism all wrapped up in one.  From that point of view, it's positively a bargain.

April 13, 2006

Commentary in Crochet

In A Tale of Two Cities, Madame Defarge spends her days knitting an encoded commentary on the Ancien Regime, marking allegedly guilty individuals for execution.

In Anti-Factory's Crochet Bag Project, San Franciso-based visual artist Stephanie Syjuco takes up yarn and needle to forge another (and somewhat less bloody) social commentary -- this time on counterfeit handbags.  By choosing the "lowly" craft of crochet, she intends to highlight the distinction between commercial and vernacular expression and focus attention on "issues of piracy and bootlegging in today's globalized economy." 

The ultimate goal of Stephanie's fascinating project is an art installation -- including not only her own work, but yours as well.  To the barricades!

April 11, 2006

Required Reading

Some legal academics write about creativity, others create.  Check out Bound by Law?  Tales from the Public Domain, the new commentary by Keith Aoki, James Boyle, and Jennifer Jenkins -- in graphic novel form! 

April 10, 2006

Harajuku Lover?

Love the culture?  Write a song about it.  Then, use it to sell a handbag.

The putatively blonde singer/songwriter Gwen Stefani has previously proclaimed (and commodified) her attraction to Tokyo's Harajuku shopping district and the creatively costumed teens who populate it on her Love.Angel.Music.Baby album, as well as with her own entourage of four "Harajuku Girls."  Now, in addition to her celebrity designer line, L.A.M.B., Stefani has launched another fashion label:  Harajuku Lovers

Last year when the album appeared, MiHi Ahn at Salon, among others, argued that the singer had missed the point:

Stefani fawns over harajuku style in her lyrics, but her appropriation of this subculture makes about as much sense as the Gap selling Anarchy T-shirts; she's swallowed a subversive youth culture in Japan and barfed up another image of submissive giggling Asian women. 

OK, it's a good bet that Ahn won't be buying a Harajuku Lovers handbag, panties, or hoodie.  But should others be able to?

After writing a book on the subject of cultural appropriation and most recently spending the weekend at an international intellectual property conference hosted by the extraordinary Professor Peter Yu at Michigan State, where we discussed (among other things) the possibility of using IP to protect culture, I find the answer as complex as ever.  Are the stereotype and the commercialization of culture by an outsider offensive?  Yes.  Should we prohibit it?  My usual (and evolving) answer is (1) to adopt strategies that allow members of a culture to designate what is authentic (yes, that's a tough one too) and what is an imitation, and at the same time (2) to allow borrowing except in limited cases of sacred or secret aspects of culture that would be significantly harmed by appropriation. 

In this case, the Harajuku district and its denizens will presumably endure Stefani's affection, much as Kyoto will will withstand the Western attention generated by the novel Memoirs of a Geisha (and the award-winning costumes in the movie version) or Lanvin's kimono-inspired spring fashions.  After all, even the most creative street fashion draws inspiration from somewhere, and the Harajuku Lovers products are more about branding than literal copying.  And who knows what the reaction of Harajuku locals will be -- perhaps Stefani's line will be embraced (or even knocked off).

Still, I think I'll take my culture without the pop packaging.

April 09, 2006

Knockoff News 13

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

And in honor of all of the hard-boiled eggs that will be joining us for Easter and Passover this week -- and all their predecessors from early pagan fertility rites -- here's a museum exhibit that combines the real with the fake:

April 08, 2006

The Great Fake Debate

Check out "The Great Fake Debate" at The Budget Fashionista--including a guest post on the current state of the law from your own Counterfeit Chic.

Not so great fake

April 06, 2006

Why Teen Voguettes Don't Grow Up to be IP Lawyers

Moving beyong the commercial counterfeiting question, the March 2006 issue of Teen Vogue asks, "Are Your Best Friends Stealing Your Style?"  (Yes, I spent a good deal of time in a waiting room earlier this week.) 

After predictable descriptions of girls copying one another's style -- the sort of thing that reminds us of why high school was so emotionally fraught -- the article segues into advice regarding the appropriate response to a copyist (or at least one with habits somewhat less frightening than Single White Female).  A degree of self-policing is apparent; "Haley" doesn't challenge her friend "because that would be mean."  In addition, girls are urged to recognize that copying is the result of admiration or to adopt a "healthy attitude" and not stress.

While I'm in favor of anything that reduces anxiety levels in life generally, and among adolescent girls in particular, I have to wonder whether this is commonsense advice or an effort to instill an ideal of nonconfrontation.  "Haley" the girl may find social approval in remaining silent, seething, and anonymous for now, but what about "Haley" the woman?

Then again, my high school colors were orange and black, so maybe copying was simply out of the question.

April 04, 2006

Jihadi Faux?

OK, maybe Counterfeit Chic was a bit too skeptical.

In the past, I've wondered how much evidence there really is that sales of counterfeit goods fund terrorism.  While patriotic rhetoric can be sincere, sometimes it seems opportunistic or manipulative -- and any market defined as illegal has the potential to be exploited by organized crime or other bad guys.  Drugs or prostitution, for example.  Also, the link between fakes and terrorists always seems to be asserted on the basis of unspecified evidence.  After the story of weapons of mass destruction, I'd like something a bit more definite.  Finally, I have to admit that the stereotypical picture of a terrorist -- a fanatical, misogynistic young male who has spent time in a desert training camp -- doesn't seem to imply intimate knowledge of the latest styles from Louis Vuitton or Prada.  But then, by now we should all know better than to underestimate a foe.

Last week in Maryland, a traffic stop yielded a cache of counterfeit Nike sneakers, LV and Coach handbags, additional illegal merchandise -- and a CD titled "Jihad Freedom for the Slaves."  Not dispositive, but at least suspicious.

April 03, 2006

I'm Just a Bill

For those who have asked, here's the text of the Design Piracy Prohibition Act, which Rep. Bob Goodlatte introduced in Congress last week.  The gist?  Fashion designs would receive 3 years of protection under the Copyright Act, provided they were registered within 3 months of being made public, after which they would enter the public domain. 

What's all of the business about "vessel hulls"?  In 1989, the Supreme Court struck down a Florida state law protecting boat hull designs on the grounds that it was preempted by federal law.  The boat design armada invaded Congress, claiming that without protection, there would be hull to pay -- and in 1998, they received a 10-year term of protection.  H.R. 5055 would amend the Copyright Act to strengthen protection for vessel hulls and add fashion designs.  (Sounds like an inspiration for a new collection -- navy and white nautical stripes, espadrilles, red tape....)

While most IP law paints with broad brush strokes, an industry-by-industry approach to design protection may strike the right balance between creativity and copying.  (See e.g. Dan Burk & Mark Lemley on how patent law has developed de facto distinctions among areas of technology.)  The standard copyright term is now life of the author plus 70 years -- but who wears century-old fashion?  Even I clean out my closet more often than that. 

Knockoff News 12

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

While food and fashion are sometimes considered mutually opposing forces -- size 2s don't ask for second helpings -- they're united in their relative lack of intellectual property protection.  You can copyright the text of a recipe, but not the instructions in general or the food itself.  But how do gourmets and gourmands react to imitations of a chef's "signature" dish?

Of course, if you'd prefer beer and nachos with your Knockoff News, then you'll probably be courtside this evening:

While I, as a Duke undergrad alum, will have to take consolation from the bard.  ("Alas, poor Redick.  I knew him, Horatio.")

April 01, 2006

No Fooling

Among many human societies in general and Western culture in particular, we respond to literal copying as "bad" and creativity inspired by earlier works as "good."  To some extent, the law reflects this generalization.

But in legal terms, what is an infringing copy and what is simply the result of "inspiration"?  Over at Handbag Fetish, Aznstarlette wonders whether www.bagdesigns.net can get away with selling handbags marked with designer logos by adding the following disclaimer:

What is an “Inspired Designer Handbag”?

Please be aware that most internet sites do not carry the highest quality, but we do. It is very difficult to get this AAAAA quality.

An inspired handbag is designed to create the look of an authentic designer handbag to 99.9%. In no way do we represent our handbag as authentic or affiliated with any brand names. We simply ask that you compare the quality of our handbags with any other. All of our handbags are made with the materials of the originals. You will be pleasantly suprised with the quality of the bag you receive.

Nice try.  If it looks like a duck, walks like a duck, and quacks like a duck.... 

In other words, just calling a bag incorporating an unauthorized trademark "inspired" doesn't make it legal.  In fact, even without the trademark, a line-for-line copy of a very recognizable bag (like the Fendi Spy or Balenciaga Le Dix motorcycle bag) might be considered trade dress infringement.  Think of it this way:  a law enforcement officer will not hesitate to seize a kilo of cocaine marked, "The enclosed is not intended to be a controlled substance." 

Or as Rene Magritte might put it:

(OK, OK, the idea of The Treachery of Images is that a picture of a pipe is not actually a pipe -- but you get the point.  Reality cannot be altered by a false disclaimer.)

So no, many of the designs offered online are NOT legal -- which is why these sites appear and disappear so quickly.