A shocking confession from today's PostSecret:

Fashion design students would have no legal recourse, of course -- but is there no honor in the school's honor code?  (For a contrasting case from another creative medium, check out Shine v. Childs, 382 F.Supp.  2d. 602 (2005), in which a distinguished jury member visiting the Yale School of Architecture allegedly "borrowed" a student's design for an early version of the Freedom Tower at the WTC site, and the court refused to grant summary judgment.) 

Let's hope the professorial plagiarist at least pays with "A's." 

Posted by Susan Scafidi at 09:59 AM | Permalink

No, not a course about counterfeiting (although it was that, too).  A counterfeit course.  One bearing the label of an accredited institution of higher education, but allegedly without any of the usual academic input or safeguards.  In other words, a scandal.

Inside Higher Ed reports that Hunter College allowed the International AntiCounterfeiting Coalition (IACC) and one of its members, Coach, to sponsor a course.  Unusual, but not necessarily problematic -- various private and corporate donors to academic institutions sponsor everything from annual lectures to research programs to buildings and regularly sit on the advisory boards of academic centers.  In this case, however, some faculty members claim that the donor actually supplied the curriculum and that an untenured professor with no experience in the field was coerced into teaching it.   Moreover, the prof has stated that he was not permitted to explore multiple sides of the issue, which would be a clear violation of academic freedom. 

The content of the course has raised ethical eyebrows as well.  As a class project, the students created a fake undergrad, "Heidi Cee," whose blog chronicles the loss of a Coach bag that was a gift from her ex-boyfriend, her frantic efforts to get it back by posting notice of a $500 reward all over campus, her joy at recovering the bag...and her extreme distress at finding that she's paid a con artist for a counterfeit bag.  This emotionally traumatic saga leads her to learn more about fakes -- through the IACC website, of course.  In "Heidi's" words:

U should google the International AntiCounterfeiting Coalition... its where I learned most of this stuff. The have pictures that show you how to tell a real from a fake. They have a bunch of other companies that have joined the cause... lol kinda ironic, but COACH is on the list too!

Ironic indeed.

Armed with this newfound knowledge, "Heidi" enlists friends to create a "Break the Chain" (of counterfeiting) event to raise awareness -- though she conveniently doesn't make it in person because of a family emergency.  The event is nevertheless declared "awesome,"  and comes with its own video on YouTube.

The final post on "Heidi's" blog reveals the ruse.  Maybe it was effective, maybe not.  But if this is representative of Hunter College's courses in marketing, the curriculum is woefully deficient in warnings about the popular response to online sock puppetry and astroturfing. 

Partnerships between industry and academia are common -- in the sciences, ubiquitous.  But if the professors' charges are true, the IACC deserved a partner far more committed to academic integrity than to a lousy ten grand.

Oh, and a note to "Heidi":  Sentiment is fine, but why exactly would you offer a $500 reward for a $158 bag? 

Posted by Susan Scafidi at 07:16 PM | Permalink

Fashion designers make no secret of ransacking the world's closets in search of inspiration.   The world, however, isn't always thrilled to see someone else in its favorite dresses.

Last month the Independent reported that British designer Matthew Williamson had provoked the ire of some Ethiopians with two Spring 2008 designs that resemble traditional dresses.  In the words of Abdurazak Omer of the Intellectual Property Office in Addis Ababa:

We are very unhappy with the actions of Mr. Williamson.  These are the dresses of our mothers and grandmothers. They symbolise our identity, faith and national pride. Nobody has the right to claim these designs as their own.

Photos via Sassybella.com

Williamson, whose colorful designs appear under the Pucci label as well as his own, has frequently turned to India and more recently to Native American designs in his collections.  In response to the controversy, a spokeperson noted:

In presenting his spring/summer 2008 collection Matthew Williamson strived to gain recognition and admiration for not only the traditional dress of the Ethiopian people, but also other African communities whose beautiful traditional techniques are also evident in the show. 

I've argued elsewhere -- and as recently as yesterday at a panel chaired by Prof. Sonia Kayal at the AALS annual conference -- that attribution to a source community is often sufficient to avoid or at least mitigate charges of unauthorized cultural appropriation.  Williamson's statement to the press by proxy is certainly a step in the right direction.  But such acknowlegement is usually more effective if it occurs before the fact, not after.  (In fairness to Williamson, I haven't read his program notes -- but then again, in the excitement over an opening act by Prince, most of the attendees at the show probably didn't read them either.) 

Of course, it never hurts to ensure in advance that specific allusion to traditional designs won't be offensive.   Remember Karl Lagerfeld's inadvertent embroidery of verses from the Koran on a Chanel bustier?  Or Jean-Paul Gaultier's Hasidic-inspired collection?  Not good for public relations in either case. 

Perhaps Williamson will adopt the suggestion of the Independent reporter and show his African-inspired designs on African models next time.  Or even donate a portion of his profits to Ethiopian designers, an idea that would no doubt please Prof. K.J. Greene, who has argued for reparations to correct past instances of uncompensated copying of African-American music. 

But one thing's for sure:  Williamson won't be seeking protection for his own designs from the Ethiopian Intellectual Property Office any time soon.

Posted by Susan Scafidi at 10:43 PM | Permalink

A key element of legal education is the skill of creating analogies, likening one set of facts to another in order to make a point or promote a desired outcome. 

A common side effect is fabulously nonsensical connections like this one from David Lat of Above the Law, quoted in a Slate article about the $200,000+ signing bonuses that some law firms are now willing to pay to Supreme Court clerks.  As an alternative, Lat notes that some firms are recruiting somewhat less pedigreed law graduates instead:

"For every one of the 36 smartest law kids," he says, "there is another equally smart law kid who just had a bad interview [for a Court clerkship]." And if law firms make the economic decision to give bonuses to them, "they get all the benefits of a knock-off Prada purse: They perform the same function, they look great, and you know they'll do a great job."

Now I understand why so many legal services are sold on street corners. 

No, wait -- wrong analogy.

Posted by Susan Scafidi at 11:10 PM | Permalink

In recognition of yesterday's graduation day at the Yale Law School, Counterfeit Chic would like to congratulate the fabulous ladies of ShangriLaw, as well as all of her former students.  The hallowed halls will surely be less stylish without you, but it is sincerely hoped that your influence will linger on like an expensive perfume.  And of course, the legal profession could use a makeover as well!

As the real intention of an alma mater is to impose alumni/ae obligations forevermore, here is your first task:  to find and eliminate all faux Yale merchandise (like the T-shirt pictured on Flickr, below).  Note that the offending garment already has prison bars imprinted on the front.  Unflattering fakes from competing New England institutions are, of course, fair game.

Counterfeit Chic also just spent a lovely semester at Georgetown and congratulates her wonderful D.C. graduates, as well. 

Hail and farewell!

Posted by Susan Scafidi at 04:24 PM | Permalink

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.

Posted by Susan Scafidi at 10:01 AM | Permalink | Comments (1) | TrackBacks (1)

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).

Posted by Susan Scafidi at 12:54 AM | Permalink | TrackBacks (1)

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.

Posted by Susan Scafidi at 01:01 PM | Permalink | Comments (3)

Law & Economics, the signature legal theory of the 1980s (with its foil Critical Legal Studies), has been applied to everything from accidents to ownership -- and now fashion knockoffs.

The heart of the law & economics approach to fashionable knockoffs is the fashion cycle theory, which has been around since at least the 1920s.  In brief, Kal Raustiala & Chris Sprigman argue that the relative lack of intellectual property protection for fashion is justified by a persistent equilibrium that accomodates both creativity and copying.  (I presume that in the final draft they will acknowledge our many scholarly predecessors who have also analyzed the fashion cycle.)  Since most IP professors have spent the last decade arguing that IP law had gotten out of hand and overprotection abounds, the tendency is to celebrate this pocket of low protection. 

This work, however, doesn't reflect (1) an accurate history of the fashion industry's persistent attempts to gain legal protection over the last century, (2) extralegal attempts, including the leveraging of social norms, to control copying where law was unavailable, (3) the role of longstanding foreign protection in the development of the global fashion industry, (4) the redistributive results of this relative lack of protection, (5) recent pressures on the fashion industry resulting from the flow of information and the changed loci of production, and, most importantly, (6) the embedded cultural attitudes (including the roles of gender and class) that have contributed to lesser protections for the clothing industry in the U.S. 

In my own reseach (draft to follow), I have incorporated recent approaches to law -- informed by Cultural Studies,  Cognitive Science, and Legal History -- to explore the lower protections provided to the fashion industry.  My goal is not necessarily prescriptive; that is, I didn't set out to "prove" that low protection is good and high protection bad, or vice versa.  In fact, I believe that this binary approach oversimplifies the field of intellectual property law.

Instead, my theoretical approach to intellectual property protection has been to examine less protected areas of human creativity and to compare them with highly protected but equally creative areas.  (Hence my book on collective cultural production.)  This comparison, combined with a bit of history, reveals the cultural preferences at the heart of intellectual property law and can provide a starting point for rationalizing the system.  Consider the fact that neither poetry nor fashion needs protection to exist, yet one has full copyright protection and the other does not.  It's important to understand why.

For the field of fashion design, an analytical approach that takes seriously both the industry (and its various players) and the (typically female) customer is long overdue.

As a woman law professor who has kept a file on law & fashion for nearly a decade, but was told not to write on such a "frivolous" and feminine topic (see Kenji Yoshino's Covering, which he and I discussed in this context recently), I'm very pleased that the law guys are catching up -- so kudos to Kal & Chris.  And thanks for sending me your paper.  The more voices, the more seriously the topic will be regarded.  Finally.

Posted by Susan Scafidi at 09:30 AM | Permalink | Comments (2)

Thanks to the Georgetown University Law Center faculty for engaging my "Counterfeit Chic" presentation at a faculty research workshop today.  Fashion and intellectual property is still an unusual subject for a law school, but both hospitality and interesting questions were in abundance.

I'll keep you updated on the progress of the research, but for the moment I'll just share with you my Valentine's Day ornament, Tobias Wong's "Ballistic Rose" pin, made of heavy duty ballistic nylon (aka Kevlar, a registered trademark of DuPont).  Certainly an interesting commentary on modern romance!

The question is, would the pin be subject to copyright? 

Ordinarily, a functional item cannot be copyrighted -- hence fashion's usual dilemma.  If we simply unglued the metal pin from the back of the rose, or replaced the pin with a hook and hung it on the wall, however, we'd have an art object that would be subject to copyright protection.  So the design part of the brooch that is "separable" from its function -- pretty much all of it, save the metal pin -- is subject to copyright.  Strange?  Yes, but the rules about functionality and separability lead to some tortured results.

There is a separate question re: to what extent copyright protects this design, given that it's fairly literal and that making rosettes from fabric is not unusual, but the use of ballistic nylon is an original expression.  So my verdict is for at least some copyright protection, with congratulations to the artist. 

Happy Valentine's Day -- and here's hoping that your roses don't need to be bulletproof!

P.S. Props to the Cooper-Hewitt National Design Museum in New York, where I found the pin during the "Extreme Textiles" exhibition.  An institution dedicated to the display of historic and contemporary design is certainly worth a visit, even if they don't have an online museum store! 

Posted by Susan Scafidi at 06:07 PM | Permalink | Comments (1)

Attention academia:  the paper of record has issued a challenge those who would dismiss fashion as mere frivolity. 

In yesterday's New York Times, which prominently featured fashion news in no less than 3 sections, including an above-the-fold picture on the front page, Guy Trebay described the process of trend-spotting:

A pattern emerges, and perhaps it is even one that contains unexpected meanings about where the culture is headed.  Maybe this seems like a nutty assertion to make in regard to fashion, which many still find it easy, if not intellectually obligatory, to dismiss.  But in a culture of surface it's a mistake to ignore the potency of any visual language. 

Given that the Times is obligatory reading on university campuses across the country -- few profs settle for the local paper, especially in if they happen to be in red states -- expect to see a new embrace of fashion and a rise in lectures like "Intertextuality and Intimate Apparel in the Interwar Period" or "Denim and Marxism:  The Androgynous (S)exploitation of Proletarian GarMENts."  And, predictably, a rise in complaints among a certain cadre about why nobody just studies Classics of Western Civilization anymore. 

Of course, it wouldn't be an intellectual challenge without a charming degree of condescension.  Trebay adds:

One good place to check out the number of playful tools for sartorial self-expression in a post-feminist era is the trillion little blogs on MySpace.com.  There are some plural ideas about what constitutes femininity these days....

Well, yes.  Your humble trillion-and-first little blogger said so two weeks ago, as have so many others (I particularly love Jack & Hill's recent post on Fashion as Free Speech). 

I suppose that a trillion little bloggers can't be wrong.  But it's nice of the Times to make it official.

Posted by Susan Scafidi at 09:00 PM | Permalink

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!

Posted by Susan Scafidi at 11:31 PM | Permalink | Comments (1) | TrackBacks (2)

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.) 

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!

Posted by Susan Scafidi at 08:26 PM | Permalink | Comments (4)

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:

Continue reading "Law Profs, Part 2" »

Posted by Susan Scafidi at 12:06 PM | Permalink | Comments (4)

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.

Posted by Susan Scafidi at 07:25 AM | Permalink