Laws must regulate fashion counterfeiting

Susan Scafidi in Washington Square News (NYU News), April 09, 2012

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The United States democracy, which takes an aggressive stance on protecting individual rights, falls short in extending protections to the fashion industry. A simple walk through SoHo reveals this ubiquitous problem: The streets are lined with cheap knockoffs — eye candy for the typical tourist and a blow to copied fashion designers. The thick — and probably fake — wallets of copyists reflect the six digit figures that U.S. businesses lose annually to the counterfeit goods industry.

As an NYU senior, I have proudly lived in our country's fashion capital for nearly four years now, but I have — not so proudly — been blind to the issues of counterfeit. I have cultivated an interest for fashion outside the classroom with the same passion and fortitude that I have dedicated to my pre-law education inside the classroom. It is at the intersection of my fashion and legal interests, however, that I have grown conscious and sensitive to the plight of legally naked fashion designers.

The crushing problem is that the world is developing a primary palate for cheap goods. This is not a new observation. Whenever the economy takes a turn for the worse, like recently, societal tastes kick up their reflexes and respond to it. For this reason, price-conscience consumers are constantly scrounging for the next hot deal. The international proliferation of the discount super-store Walmart, for instance, is an obvious indicator that society is examining its budget.

The consumption of cheap goods is threatening because it pushes the demand for counterfeits higher. People still want trendy items but they are just not willing to dish out the cash for them when knockoffs are at their fingertips. Whether economic times are tough or not, one thing is for certain: If a demand for these counterfeits remain, there will continue to be a supply.

What we, as smart consumers, need to understand is that protecting the fashion industry is not a zero-sum game. Just because the producers win protection, does not mean the consumers lose out. In fact, consumers gain as well. If anti-counterfeit legislation is successfully implemented, major retail stores — such as H&M and Forever 21 — will be forced to create the same trend with slight differences in design, which means product diversification and more variety for the consumer.

Europe has already realized the benefits of anti-counterfeit legislation and has taken a more watchful eye in the policing of counterfeits. In France and Italy, specifically, not only can a counterfeit vendor be slapped with a pricey fine but so can the gluttonous consumer — a cautionary side note for future study abroad students.

I am not saying to kick the can on copying altogether. Ironically, the fashion industry largely thrives on the idea of copying. Think about it: One designer releases a new trend on the runway and six months later, copies of it are seen in department stores everywhere. Also, unlike music and movies — which are currently protected under U.S. copyright law — fashion does not have as long of a shelf life. Trends are constantly being reused and recycled — the glories of vintage.

Bottom line is designers are continually copying trends — to some extent.

So, where do we draw the legal line on copying?

Susan Scafidi, a current Fordham law professor and leader in the fashion law movement, narrowed this down for us. She developed legislation that prohibits the creation of a virtually identical fashion product, making it feasible to bring a legal claim to the unique culture of the fashion industry.

Critics, however, mock the term virtually identical for being virtually vague. Perhaps it is time for them to bite their tongues because like all issues of law there will always be areas of gray and that will have to be left up to judges.

I must credit the majority of my knowledge on this issue to Scafidi, who has developed a rich and rare expertise in the field of fashion law. I am optimistic that my article can spread awareness to the issues of counterfeit and push her seven-year-long legislative crusade into enactment.