August 26, 2008

Speeding Ticket for Fast Fashion

...I see that the fashion wears out more apparel than the man.

--William Shakespeare

Even as lovers of cheap chic on this side of the pond eagerly await the arrival of the U.K.'s Topshop in New York, the House of Lords has officially frowned upon fast fashion.  In its report on "Waste Reduction," the Science and Technology Committee noted:

This problem [of a throwaway society] is particularly apparent within the textile industry, where the culture of "fast fashion" encourages consumers to dispose of clothes which have only been worn a few times in favour of new, cheap garments which themselves will also go out of fashion and be discarded within a matter of months. Mr Paul Ozanne, National Recycling Co-ordinator at the Salvation Army Trading Company commented that these garments "are quick to produce; the turnover is very fast; and the length of time they are able to be worn is very short.". Furthermore, the rapid production of cheap clothes involves the use of low quality materials in garments of high complexity, which makes it difficult to capture any value from the material at the end of the garments' lives. Mr Alan Wheeler, National Liaison Manager at the Textile Recycling Association, commented that "fast fashion" items were "harder to re-use" and that there was "not much thought about how recyclable an item is at the end of its useful life."

The Daily Mail immediately took up the debate, pitting its own style expert (anti-fast fashion) against the editor of British Vogue (pro-cheap chic).  Interestingly, none of the discussion -- in Parliament, in the newspaper, or on Jezebel, which followed with another analysis -- brought up the issue that has caused Counterfeit Chic to applaud the growing slow fashion movement:  namely, that fast fashion is fraught with fakes.  (Yes, even Topshop goes a bit to far with its designer "inspirations" on occasion.)  Given that not only counterfeit labels and logos but also unauthorized copies of fashion designs themselves are illegal in U.K., surely initiatives that not only promote sustainability but reduce lawbreaking would be welcome.

The committee report itself was a bit vague on legal solutions, though it did applaud a private initiative by Marks & Spencer that rewarded donations of clothing to Oxfam with M&S gift certificates.  Still, it seems that most of the poorly constructed, last season fast fashion out there is likely to end its short life in a landfill alongside its own plastic bags. 

Or on the floor in the back of the closet. 

Thanks to the ever-alert Larry Abraham for the tip!

P.S. On the same day that the House of Lords report appeared, the New York Times offered its own subtle indictment of fast fashion.  Worse than the exploitation of child labor, worse than the destruction of the environment, worse even than the violation of intellectual property law, it's the dreaded whisper of one's own internal fashion critic:

You can rationalize blowing your rent on Gucci’s $1,900 swinging fringed boots — by telling yourself you’ll spend only $89 for Zara’s copy of Gucci’s mini peasant dress. But you would know immediately that your cheap-jack Doctor Zhivago outfit wasn’t working, and then what?

July 21, 2008

No, No, Naf Naf

Isabel Marant Fall 2006According to a French court, the cheap chic chain Naf Naf's copy of an Isabel Morant dress was, well, a bit naff

Despite minor differences between the original puff-sleeved black dress (on the runway, left) and the "slavish" copy, the chain and its supplier, Paris Paris, were ordered to pay the designer 75,000 euros (approx. USD $120,000).  The court also criticized Naf Naf for following in the wake of Isabel Morant's success and attempting to profit from the designer's creative investment without untying its own purse strings.  Both dresses were in stores during the Fall 2006 seasion, with the original priced at 250 euros and the knockoff at only 69.90 euros. 

An unusual decision?  Only in the sense that it actually went to court.  According to Counterfeit Chic's sources, European designers, who enjoy legal protection against such plagiarism, regularly settle similar complaints against fast fashion companies. 

U.S. designers, of course, still lack such legal protections -- at least until the next Congress convenes and the Design Piracy Prohibition Act is reintroduced. 

Via WWD.  Thanks to the indomitable Steven Kolb for the tip!

April 03, 2008

Louis Vuitton's Fake-Fighting Parody

"Life imitates art far more than art imitates life."

Oscar Wilde would've been ecstatic at the juxtaposition of life and art at the Brooklyn Museum earlier this evening -- and not just because it involved an abundance of luxury goods.  As guests arrived for the opening of an exhibit celebrating the art of Takashi Murakami and his collaboration with Marc Jacobs for Louis Vuitton, they were greeted by an outdoor scene more common on Canal Street:  logoed merchandise piled on tables or hung on metal pegs, graffiti-covered walls, stalls closed "by court order," and persistent vendors promising "best quality" and "best price."  The difference?  Those piles of LV Multicolore bags were real. 

Brooklyn gentrification gone Wilde!

Over the past 5 years, the Murakami/Vuitton partnership has produced some of the world's most copied handbags.  LV has responded with perhaps the world's most elaborate private anticounterfeiting operation, dedicating a team of 40 lawyers around the globe to pursuing its "zero tolerance policy" against copying.  Nowhere have LV's efforts been more extensive than in New York, where actions against landlords have established a beachhead against the counterfeiters who can seem more numerous than grains of sand. 

Of course, most of the 30,000+ raids that LV has conducted since 2003 have occured in relative silence.  Like other luxury companies, Louis Vuitton would rather draw attention to its products than to its issues with counterfeiting.  (Hence one of the most common questions directed to Counterfeit Chic:  If copying is illegal, why doesn't anyone do anything about it?  Answer:  They're trying.  Really!) 

New York's reputation as a counterfeit capital is hard to ignore, however.  Thus when Brooklyn Museum Director Arnold Lehman and LV Chairman and CEO Yves Carcelle discussed how to put a local spin on the © MURAKAMI exhibition, which had previously opened in L.A., their images of the city's vibrant street life inevitably turned to the dark side of our fabulous sidewalk agora:  fakes.  A popup installation and a bit of performance art turned out to be the perfect way to draw attention to the issue of what Lehman called "intellectual theft, Carcelle termed an "illness of the world," and Deputy Mayor Ed Skyler described as "a serious crime backed up by serious criminal enterprises."  Creative art used to express a commitment to legal protection of creative art -- now that's a New York moment.

While visitors to © MURAKAMI won't have the opportunity to buy a real LV handbag from a fake street vendor, there's nevertheless a seamless blend of art, commerce, and fashion inside the museum as well.  At the very heart of the exhibition, nestled between rooms of larger-than-life sculptures and giant painted canvases, is a tiny gem of a Louis Vuitton boutique.  Not only are all the newest versions of the Multicolore bag available here, but Murakami has also created a signed series of small art canvases in new "Monogramouflage" patterns.  At $6,000 each -- rising to $10,000 after the first batch sells out -- they're an artist's version of a diffusion line.  Or you can wait for the pattern to appear on LV handbags and other products, available at the museum as of June 1.  Another meeting of luxury and the street, a political reference, or a sly wink at the idea of overtly displayed "stealth wealth"?  Whatever the interpretation, the patterns are bound to be popular.

Takashi Murakami

Perhaps my favorite bit of the exhibit, though, wasn't the sculptures or even the guilt-free shopping, with a portion of the evening's proceeds earmarked for Homeland Security.  Instead, it was a moment of surprise as I stood in front of a glass case with an LV Murakami Cherry Blossom Retro handbag over my arm -- and realized that the flowers on my bag were smiling back at an exact duplicate.  OK, mine usually lives in a metal filing cabinet rather than a pristine display case, and its usual outings are to class to illustrate the idea of conceptual separability in copyright (the surface print is protected, the underlying design of the bag is not) rather than to elegant parties, but in that moment, it was wearable art.  And yes, it's real.

February 05, 2008

From Reality to Runway

Designers find inspiration in some unlikely places.  Thus far during New York Fashion week we've seen warrior women and vagabond heroines; we've gone back to nature and back in time.  But one designer seems to have taken inspiration from fast fashion for teens -- perhaps too literally.

Delia's started in 1994 as the first catalog operation targeted at the high school set and has since branched out into both online and brick-and-mortar retailing.  With dresses starting at USD $29.50, its customers are still babysitting, not running Fortune 500 companies or running for office.  (Side note:  Vote, people!  It's Super Tuesday!)

Abaete, a designer line founded in 2004, also appears aimed at young women -- or at least those who shop at Neiman's, Saks, and Bendel's and, in some cases, appear on stage and screen.  If Abaete seeks to dress relatively affluent trendsetters, however, why does one of its looks sent down the runway on Saturday look suspiciously like one that appeared in the Delia's catalog last year and is still available online for $44.50

Delia's Brigitte dress (left) and Abaete (right)

But Abaete isn't just trolling the mall for knockoff bait.  Other looks are similarly derivative -- the deep violet side-ruffle dress and similar black and white side-ruffle blouses are available this season at Barney's.  From Lanvin.  As for the color-blocked styles, Narciso Rodriguez and Jonathan Saunders clearly got there first, although we won't quibble with mere inspiration.  It's no wonder that the usually effusive summed up Abaete's fall runway by noting, "Anything to write home about? Perhaps not." 

Sad, really.  Especially since the name of the line is the designer's family name -- and translates roughly to "person of virtue." 

Thanks to amazing Counterfeit Chic reader Lara, whose vast visual memory is a thing of beauty, even when the images she recalls are not!

September 04, 2007

Copying Clothes Over a High-Speed Connection

What would life be like without the mixed blessings of the internet?

In today's New York Times, Eric Wilson goes behind the scenes at Simonia Fashions, one of many companies waiting for the first photos from New York Fashion Week to appear online.  Not because the proprietors are interested in fashion's new creative direction, mind you, but so that they can pick out the most popular designs and get cheap copies into stores -- often before the originals are available for sale. 

Naturally, the retailers selling the knockoffs disclaim any actual knowledge of copying, pointing back to their suppliers as the source of the controversial clothing. 

In the U.S. all of this occurs without interference from any of those inconvenient intellectual property laws that might actually protect creative fashion designers.  Interestingly, the company featured in the article outsources its manufacturing to India, where design protection does exist.

It's enough to make one long for the good old days days of rough pencil sketches and descriptions sent via telegraph.

Tory Burch (left) and Simonia Fashion's Blue Plate special (right)

Bonus point:  Who is the "expert working with the designers’ trade group" who in the article offered a rock-bottom, minimum estimate of the percentage of knockoffs in the apparel and accessories market?  You guessed it.  And just for the record, since some of you have asked, I do not now nor have I ever represented the CFDA; all of my opinions are my own and are the product of my academic research.  All of my work on this issue, moreover, has been pro bono -- both in the literal sense of "for the good" and in the more colloquial sense of "free of charge." 

August 29, 2007

Mad About Plaid

Not long ago, the phrase "counterfeit Burberry" was practically a tautology.  The brand's trademark nova check was copied on everything from cookies to credit card covers, and the pattern became so associated with chav culture that the company decided to downplay it for a while.

All is not quiet on the tartan front, however.  Another venerable outerwear company, newly rescued from bankrupcy by Iconix, has decided that a bit of plaid is just what it needs to become a "premier global lifestyle brand."  In London Fog's new ad campaign, trenchcoat-clad actors Kevin Bacon, Cheryl Hines, and Teri Hatcher flash their plaid linings in support of Bacon's charitable networking site,, and their own favorite causes. 

Burberry, however, is not amused.  In a complaint filed last Friday in federal district court, the British brand charged its American counterpart with not only infringing the iconic check but also imitating Burberry's products and ad campaigns and even lifting copyrighted images for use in advertising materials. 

Iconix responded with a statement denying the allegations and adding, "Plaid designs have been a common element of London Fog products for years." 

So, trenchcoats and tartan.  Hardly original works -- or are they?  As everyone from Victor & Rolf to Gaultier has proven, the humble trench can be the starting point for extraordinarily original garments.  While the Burberry trench is the cornerstone of the house, however, the classic version offered by both Burberry (left) and London Fog (right) is a standard fashion basic. 

What, then, of plaid?  How unique is the Burberry check?  It's certainly a registered trademark, and widely recognized as such.  Beyond that, I'll leave you to read paragraph 11 of the complaint for a detailed description or, if you prefer a more tantalizing tour of tartan, the forthcoming book from designer Jeffrey Banks.  With over 3,500 official Scottish tartans and a potentially infinite number of other plaids out there, what are the odds of the same one appearing twice -- even assuming there's some unofficial affinity between tartan and trenchcoats? 

One thing's for sure:  If Burberry and London Fog proceed to trial, that classic scarf at the bottom of your sock drawer could provide an easy escape from jury duty. 

Thanks to Sally and Anonymous for the tip!

June 28, 2007

The Fix is In

Manufacturers must be delighted and discounters devastated by today's 5-4 Supreme Court decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc. 

The much-awaited antitrust decision overturned 96 years of precedent that had treated as per se illegal vertical price restraints, such as an agreement between a manufacturer and retailers to set minimum retail prices.  Instead, courts must now apply a "rule of reason" on a case-by-case basis to determine whether or not such price maintenance agreements constitute antitrust violations. 

Leegin Creative originated as a dispute between a manufacturer of leather goods and accessories and PSKS, which operates a women's clothing store in Lewisville, Texas, "Kay's Kloset."  Kay's Kloset began selling Leegin's "Brighton" line of merchandise in 1995.  Two years later, the manufacturer instituted a minimum pricing policy that claimed to bolster the brand's image and to promote competition on the basis of quality and service rather than price.  In 2002, Leegin discovered that Kay's Kloset had been marking down the entire Brighton line by 20%.  When the retailer refused to abandon this practice, Leegin terminated the relationship, and PSKS sued.

Writing for the majority, Justice Kennedy, joined by Roberts, Scalia, Thomas, and Alito, cited a great deal of economic literature to the effect that price maintenance agreements between manufacturers and retailers can have either procompetitive or anticompetitive effects.  In other words, unlike certain classic horizontal combinations in restraint of trade, such as price fixing among various brands or geographical market division agreements, vertical price restraints do not necessarily harm the consumer.  In reversing and remanding the case, the Supreme Court directed the lower court to admit evidence regarding the effects of Leegin's policy.

Justice Breyer's dissent, joined by Stevens, Souter, and Ginsburg, did not dispute the essence of the economic data.  Rather, the dissent noted that the relevant precedent has been in place since 1911 and that economic arguments on both sides have been part of the antitrust literature for over half a century.  In Breyer's view, if such data has not been sufficient to convince Congress of the need to alter the law and there has been no dramatic change in circumstances, then the Court should respect the principle of stare decisis and resist the temptation to overturn well-established precedent.

After announcing the decision this morning, the Court recessed until October 1 -- giving the soberly clad justices ample time to hit Fourth of July sales before the effects of their ruling become apparent.  (Not to say that judicial robes can't be quite striking on occasion....)


UPDATE:  More analysis is available on the Antitrust & Competition Policy Blog.

May 17, 2007

Guilt and Innocence

For a cultural historian, works of fiction are arguably among the best records of the past.  What better place to find descriptions of daily life, from employment to entertainment, food to fashion? 

In The Age of Innocence, Edith Wharton's 1921 tale of late-19th-century New York Society and its machinations, gowns of velvet, fur, brocade, muslin, tulle, and especially bridal satin play important supporting roles.  The last of these, in particular, forms an object to be protected from would-be interlopers:  in the case of the bride herself, from a rival to her groom's affections, and in the case of her wedding dress, from (of course) eager copyists.

May Welland's procession into Grace Church to marry Newland Archer is, as custom dictates, to be protected from common eyes by a canvas-draped awning.  The narrow passage, however, proves an obstacle to the bride's broad-minded and physically large grandmother, Catherine, whose wheelchair will not fit between its posts:

The idea of doing away with this awning, and revealing the bride to the mob of dressmakers and newspaper reporters who stood outside fighting to get near the joints of the canvas, exceeded even old Catherine's courage, though for a moment she had weighed the possibility.  "Why, they might take a photograph of my child and put it in the papers!" Mrs. Welland exclaimed when her mother's last plan was hinted to her; and from this unthinkable indecency the clan recoiled with a collective shudder.

How quaint, even for Wharton's day. 

Of course, not every current socialite or celebrity bride wishes to be an easy target for freelance photographers -- especially when they've learned to sell the pictures themselves, or at least arrange for flattering views and venues.  (Melania Trump in Dior by Galliano on the cover of Vogue, perhaps?)

Still, modern copyists don't have to join the scrum of paparazzi in order to get an early look at the latest styles.  That's what the internet is for.

March 20, 2007

Today's Today Show Survey

The results so far (2:15 pm EDT):

December 21, 2006

Forming Norms

I like fashion to go down to the street, but I can't accept that it should originate there.

--attributed to Coco Chanel

Acapulco Gold sweatshirt on Samuel AyideWhile Mlle. Chanel may or may not have actually dissed streetwear, the consummate modernist borrowed a number of her early designs from plebian sources -- sailors' sweaters and men's athletic gear, among others.  One can only imagine what she might have done with the humble hoodie.   (Marc Jacobs' cashmere versions come to mind, but surely that's just the beginning.) 

In the post-Coco era, the street remains a fashion laboratory that has produced myriad small labels offering unique designs.  This is fast fashion at its speediest, a limited-edition set of alternatives to both widely available luxury brands and mass-market imitations.  As the New York Times reports, however, these urban labels reference both 1980s hip-hop roots and the LVs, CCs, and GGs that collectively spell economic success:

The newest companies are reinterpreting the hoodie, introducing variations with brashly vibrant and often menacing imagery:  all-over prints with bullet-hole graphics, chain-link fences and basketball netting, guns and roses, cobwebs and flamboyantly irreverent reinterpretations of Vuitton, Chanel, or Gucci logos, each a graphically subversive comment on those corporate fashion behemoths. 

The small scale of these creative endeavors means that the barriers to entry are relatively low; almost anyone can aspire to be the next hot streetwear designer.  On the other hand, even as the trade in redesigned luxury logos causes corporate brows to furrow, streetwear labels are themselves finding knockoffs to be a problem:

The peril, [10.Deep partner John Fishel] said, is that bootleggers and designers may flood the market with look-alike wares before a small company has a chance to stabilize. 

So where's the line between creative inspiration or parody and mere imitation?  In the upper echelon of the fashion industry, designers risk losing artistic credibility if they're caught copying.  The same is true of original streetwear -- perhaps even more so, since value is so closely tied to a perception of authenticity.  In other words, haute couture and urban streetwear have more in common, normatively speaking, than either might imagine. 

November 04, 2006

Online (Mind)Gaming

In May, Christina Passariello reported in the Wall Street Journal that luxury brands were (cautiously) risking their cultivated airs of exclusivity and experimenting with direct online sales.  In today's WSJ, she once again announces this trend, complete with a repeat reference to counterfeits as one of the driving forces behind it:

The Internet's reputation as a host for discount shopping and bargain-basement deals, epitomized by retailers like eBay and Amazon, has until now been a turn off for luxury-goods players.  Brands have largely focused instead on developing their roadside store networks, where they say they can better control their image.

But the absence of real luxury players online created a void that counterfeiters have filled.  Experts say that by opening a certified store online, fashion houses can help combat that troubling phenomenon.  For instance, Hermes's site warns consumers that other sites might be passing off fake or damaged goods.

As long as we're recycling vintage commentary, Counterfeit Chic's response the first time was essentially that while some customers want fakes priced at next-to-nothing, others may be willing to pay for authenticity, quality, and condition. 

There's another point to be made, though.  While today's article emphasizes that the online likes of Bottega Veneta and Gucci won't be emulating plebian tactics like pre-holiday deals or post-Christmas price-slashing, the decision to allow shoppers in Peoria or Timbuktu direct access to luxury goods might address another populist issue. 

Fashion houses spend large amounts of money advertising products through mass-market venues -- ads in Vogue, Elle, or Harper's Bazaar, for example.  Not only is the average reader unable to afford these goods, at least not on a regular basis, but unless she happens to live in a large, urban area or ponies up the price of a plane ticket, she might never even be offered the opportunity to buy them.  And if she does manage to visit an elegant jewel box of a boutique in one of the globe's high-rent districts, it's unlikely that the hot item she covets will actually be available. 

Luxury brands have for years followed the strategy of creating artificial scarcity and thus unrequited desire in consumers, and then channeling it into more accessible lifestyle goods available at a local department store.  $80 perfume, say, rather than an $1800 handbag.  Consumers are nevertheless to some degree left with induced but unsatisfied demand for the latest "it" bag, gown, or watch photographed along with Kate, Uma, or [insert celebrity here].  In an era when we consider ourselves to be on a first-name basis with not only glittering models and actresses but also world-famous cobblers and tailors, this standoffishness is bound to generate some resentment toward brands that seduce but fail to deliver.  Hence one frequently observed phenomenon among consumers who buy counterfeits:  desire for the design, but resentment of the brand. 

If at least some high-end luxury goods are no more than a click away, however, some of that consumer resentment may be dissipated.  True, brands will have to negotiate a delicate balance between availability and exclusivity in order to maintain their luxury status.  But even the appearance of access may (despite accompanying sticker shock) mask the unpleasant odor of elitism. 

In other words, combatting counterfeiting isn't just about law enforcement.  It's about consumer psychology -- and what better place to begin than when we're already at home on our couches?

August 17, 2006

Eye of the Beholder

As the Emmy-nominated television show Weeds returns for its second season, Counterfeit Chic takes a look back at the first episode of the series.  The star of this clip is not actress Mary-Louise Parker as a pot-dealing widowed mother of two, but rather her lime green handbag.  It's a designer Rorschach blot, revealing more about the characters looking at the bag than the bag itself. 


August 15, 2006

Murketing Questionnaire

Head over to Murketing, Rob Walker's interesting and insightful blog on consumer culture, for a Q&A with your own Counterfeit Chic.  The topic?  An indie commentary on counterfeiting in the form of a Prestigious T-shirt that screams, "Stop Rockin' Fake Shit!" 

Think of it as the equivalent of a lawyer's classic pinstriped suit -- for the court of public opinion. 

Many thanks to Rob for the thought-provoking questions!

August 13, 2006

Knocked Off or Knocked Up?

When is a knockoff merely an inferior copy of the original and when is it something more?

Ever since writing about Michael Kors' upscale version of the ubiquitous Jack Rogers "Navajo" sandal, I've been thinking about the relationship between authenticity and quality in the realm of fashion.  (Of course it's not at all clear that the "Navajo" sandals are actually Native American, but that's another kind of authenticity -- part of the subject matter of my book, in fact.) 

When experts give advice about distinguishing real from fake, one of the key elements is usually quality.  Loose stitching, crooked seams, poorly attached tags?  Probably fake. 

But what about luxury copies -- or more often interpretations -- of mass market products?  Check out the classic Bean Boots by L.L. Bean (below, left), going toe-to-toe with Manolo Blahnik's well-heeled 1994 version:

Both are celebrated as examples of fine style and craftsmanship, but the Manolo is a deliberate (and far more expensive) copy, albeit a transformative copy.  And that's only one case:  both Blahnik and Norma Kamali before him have created high-heeled versions of the iconic black-and-white Chuck Taylors, for example. 

So how is a luxe reinterpretation different from a Canal Street counterfeit?  In the case of the Manolo boot above, the designer isn't trying to fool anyone, either with the design or with a fake label.  The referent is obviously L.L. Bean, but the transformative details -- high heel, pointed toe, leather in place of rubber -- are among Blahnik's own signatures.  In addition, the two styles retail at quite different price points and presumably serve different functions, though one might imagine an eccentric matron pruning roses in her Manolos.  In the end, the high-fashion version is an homage to the original and to the timeless New England style that it represents, as well as a clever visual pun.

Ah, but is the luxury version legal?  Under current U.S. law, copying a design is not generally actionable, and the example above isn't even an exact copy.  End of story?  Not necessarily.  In theory, L.L. Bean might have claimed that Manolo Blahnik had infringed on its trade dress.  The design of the Bean Boot is, after all, so closely associated with L.L. Bean that it arguably indicates an association with the company (i.e. has developed "secondary meaning").  On the other hand, 90mm heels are not exactly part of L.L. Bean's oeuvre, so the likelihood of consumer confusion is somewhat remote.  Since I don't know of any actual objection by L.L. Bean, or a licensing agreement for that matter --  please let  me know if you've heard otherwise -- we can only speculate about a possible legal outcome.  (Personally, I hope that the nice folks up in Maine had a good laugh and registered a boost in sales to fashionisti.)

All of which leaves the world of creative "knockups" pregnant with possibilities, legal or otherwise....

August 04, 2006

An Old-Fashioned Question

In my childhood bedroom, on one of many shelves full of books, rests a copy of An Old-Fashioned Girl by Louisa May Alcott, better known as the author of Little Women.  This 1870 novel contains the passage below, in which a group of young women gathers to engage in some charitable sewing and not-so-charitable chatter.  In retrospect, this may have been my first exposure to the knockoff question:

"Hush! Trix has the floor."

"If they spent their wages properly, I should n't mind so much, but they think they must be as fine as anybody, and dress so well that it is hard to tell mistress from maid. Why our cook got a bonnet just like mine (the materials were cheaper, but the effect was the same), and had the impertinence to wear it before my face. I forbid it, and she left, of course, which made papa so cross he would n't give me the camel's hair shawl he promised this year."

"It 's perfectly shameful!" said Miss Perkins, as Trix paused out of breath. "Servants ought to be made to dress like servants, as they do abroad; then we should have no more trouble," observed Miss Perkins, who had just made the grand tour, and had brought home a French maid.

"Perky don't practise as she preaches," whispered Belle to Polly, as Miss P. became absorbed in the chat of her other neighbors. "She pays her chamber girl with old finery; and the other day, when Betsey was out parading in her missis's cast-off purple plush suit, Mr. Curtis thought she was mademoiselle, and bowed to her. He is as blind as a bat, but recognized the dress, and pulled off his hat to it in the most elegant style. Perky adores him, and was mad enough to beat Betsey when she told the story and giggled over it. Betsey is quite as stylish and ever so much prettier than Perky, and she knows it, which is an aggravation."

Alcott, who spent part of her childhood in a utopian social community and became a noted abolitionist and feminist, obviously enjoyed holding social pretensions up to ridicule.  These few paragraphs alone could support an entire lecture:  why would a cook allegedly imitate the style of her employer's daughter?  how did advances in textile production make this possible?  why were European household staff more likely to wear distinctive uniforms than their American counterparts?  what is the role of clothing in constructing social status?

Today, of course, the mistress would be as likely to imitate the maid as vice versa -- fashion trends trickle up from the street as often as down from the haute couture.  In addition, the perspective of the milliner who created the original bonnet might come into play (not that many of us still wear hats on a daily basis, or have chambermaids, for that matter). 

Still, I have to smile when I think about our great-grandmothers gossiping about knockoffs.

May 29, 2006

A Girl's Best Friend (or Faux)

Caution:  Bad lawyer joke ahead.

Q.  What's the difference between a lawyer and a pit bull?

A.  Jewelry.

OK, back to the intellectual property & jewelry issue.  If copyright law is supposed to protect creative works, shouldn't fine jewelry and costume jewelry receive the same treatment?

Not so fast.  The answer is yes -- but it took a couple of lawsuits by storied costume jewelry manufactuers in the 1950s to make that clear.  In Trifari, Krussman & Fishel, Inc. v. Charel Co., 134 F. Supp. 551 (S.D.N.Y 1955), the defendant argued that the copied Trifari pieces were mere "junk jewelry" and not subject to copyright.  The court disagreed with the contention that costume jewelry could not be copyrighted, citing the applicable regulation listing "artistic jewelry" among protectable "works of art."  The opinion continued:

Costume jewelry may express the artistic conception of its 'author' no less than a painting or a statute....  Simply because it is a commonplace fashion accessory, not an expression of 'pure' or 'fine' art does not preclude a finding that plaintiff's copyrighted article is a 'work of art' within the meaning and intendment of the Act.

Although the court focused on the copyrightability of costume jewelry generally, rather than on the distinction between precious gems and paste suggested by the defendant, this opinion was the first to clarify the status of costume jewelry under U.S. law.  A few years later, another court reached the same conclusion in Boucher v. Du Boyes, Inc., 253 F.2d 948 (1958).  Faux jewelry may be more democratic than its "real" counterpart, but it is no less an art form.

In fact, while costume or travel jewelry often imitates more expensive pieces, sometimes the tables are turned.  In his artistic memoir, Faking It, Kenneth Jay Lane offers several anecdotes about wealthy admirers of his costume jewelry who have had it copied -- in precious stones.  Apparently no legal action ensued.

May 17, 2006

"Real" Espadrilles?

For several summers the humble peasant shoe known as the espadrille has been adorning the feet of the fashion flock, initially as a traditional flat shoe and more recently in ever higher, more fanciful, and more expensive versions. 

But at what point is an espadrille no longer an espadrille?

To start by giving credit where it's due, espadrilles apparently go back several centuries and are associated with the south of France and with Spain, especially Catalonia.  In their most basic form, they consist of woven rope soles sewn to a canvas upper.  Today many have rubber bottoms attached to the soles, but true purists eschew such modern innovations.

So what if we embellish and reshape them?

Cross them with flip-flops?

Sam & Libby espadrille

Turn the heel into a wedge?

Kors espadrille

Dip the whole thing into a turquoise dye bath?

Dior espadrille

Raise them to sky-high levels and invite cobbler extraordinaire Christian Louboutin to personalize them?

It seems that authentic peasant fashion, like cucina povera, has come a long way from its humble roots.  But the good news for longtime espadrille makers is that traditional or "artisanal" versions can cost more than five times as much as modernized copies -- though still orders of magnitude less than the "designer" versions.

So will whoever is wearing "real" espadrilles please stand up?  Or better yet, walk away and "borrow" a new trend?

May 09, 2006

Knocked Off Knockoffs?

Apparently the global "fast fashion" giant H&M doesn't like being copied any more than its luxury siblings do. 

H&M has hired MarkMonitor to keep tabs on online auction sales of H&M counterfeits and grey market goods (legitimate H&M products sold through unauthorized channels):

"We suspected that our products were being sold illegally online and have not had the tools to track down and identify the perpetrators until we used Auction Monitoring," said Bjorn Norberg, General Counsel at H&M. "With MarkMonitor's solution, we can automate and more efficiently uncover the profile of those responsible and take immediate action to shut down their illegal auction listings. MarkMonitor will help us to better utilize internal resources by effectively scaling a previously time-consuming process, enhance the overall security of the company with in-depth monitoring of online fraud activities, and minimize revenue losses from counterfeit and gray market goods, so we can continue to provide quality fashion at the affordable prices that we are known for."

So on the one hand H&M is fighting counterfeiters, and on the other hand it's fighting the perception that some of its designs are themselves -- ahem -- less than original.  Of course, partnering with Karl Lagerfeld and Stella McCartney to do one-time, immediately-sold-out special collections for H&M goes a long way toward establishing design street cred.  Now, about the rest of the clothes....  But then again, if H&M is being copied, it must be doing something right.

Hat tip to the aptly named Runway Scoop, a font of interesting fashion industry information and commentary. 

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!

February 24, 2006

The Man of ... Silk?

In honor of the first New York Comic-Con this weekend, here's a look back at Superman's triumph over one of Metropolis' most nefarious villains -- The Dude!  Note the measuring tape whip, the white tie & tails, the phalanx of unhappy women in lookalike dresses....

Superman #23

Never heard of The Dude?  Well, neither had Superman -- until the summer of 1943, when Clark Kent was forced to accompany Lois Lane on a shopping expedition.  She bought an expensive, one-of-a-kind dress (French, of course), only to see a cheap imitation in a dress shop in a "down-and-out neighborhood."  Shocked, Miss Lane demanded her money back -- and mustered both her feminine outrage and her journalistic instincts to expose the knockoff racket.  Naturally, she endangered herself in the process, requiring Superman to come on the scene, avoid a not-so-clever trap, and vanquish The Dude. 

The story has it all -- our favorite gendered industry (and its seedy side), class issues, French styles, creativity, copying, a smart woman on the case....  But if the Man of Steel was uncomfortable in a women's clothing store, why was Jerry Siegel, one of the original creators of Superman and the author of "Fashions in Crime!" so concerned? 

Well, knockoffs were perhaps an even more widely discussed issue back then than today.  (In the comic, after Lois Lane publishes her original story, "Feminine readers flock to the Daily Planet in droves.")  And Siegel's mind was on copyright issues.  He was already uncomfortably aware that he and his partner, Joe Shuster, has signed away the rights to Superman for a song; moreover, DC comics was engaged in a series of ongoing legal battles, claiming that other companies' superheroes infringed on Superman.  So perhaps he had some sympathy for upscale fashion designers, or at least the women who wore them.

The real question is why a guy in tights and a cape felt the need to deny an interest in fashion.

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 08, 2006

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:

Continue reading "Law Profs, Part 2" »

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.

December 23, 2005

Pearls of Great Price

In 1917 Pierre Cartier purchased a mansion on Fifth Avenue in New York from financier Morton Plant.  The price?  $100 plus a string of pearls coveted by Mrs. Plant and valued at $1 million.

In 1957 the same necklace was sold at auction for a mere $151,000.  The mansion still serves the Cartier jewelry company's flagship in New York, and were it ever to be sold, its value would be far greater than the 1917 figure.

The reason for the pearls' decline in value?  The scientific development of extraordinary knockoffs.

In the 1890s, several Japanese scientists were competing to develop a method of inducing oysters to produce round pearls.  Kokichi Mikimoto (yes, also a familiar name today on Fifth Avenue and elsewhere) was among these scientists.  By the 1920s, Mikimoto became the first to develop a commercially successful method of culturing pearls.  Despite an initial outcry against the "fake" pearls -- presumably from those lucky enough to own them -- the extreme scarcity of pearls harvested from coastal waters quickly made cultured pearls the industry standard.  Women everywhere could aspire to own what only a few decades before had been a means of displaying great wealth or royal status.

Kokichi Mikimoto

Today, it is a safe assumption that "pearls" offered for sale are cultured rather than natural.  And modern faux pearls have never seen the inside of an oyster. 

So, are those pearls in your Christmas stocking real?  It depends on who's asking -- and during which decade.