The new pirates
The vendors on Santee Alley are going underground with the good stuff -- the $300 knockoff designer handbags so close to the real thing, they could fool an Hermes salesgirl.
Most of the bags displayed out in the open on downtown L.A.'s most infamous retail street (the No. 1 hub for counterfeit fashion goods in the U.S., according to the LAPD), are half-hearted, vinyl versions of “It” bags, crafted on the cheap in Chinese factories. And contrary to popular belief, these bags -- bearing comical labels such as “Prawa” (Prada) and “Channel” (Chanel) -- are legal to manufacture and sell. They aren’t, under current laws, considered counterfeit goods.
“If there’s a copy of a Chanel bag that has a logo that’s double-Os instead of double-Cs, we can’t do anything,” said Rick Ishitani, one of the five detectives on the Los Angeles Police Department’s anti-piracy task force. “But once the vendor cuts the Os into a double-C logo, that’s a violation.”
Under the federal Copyright Act of 1976, the line between design piracy in fashion (co-opting the cut, shape and silhouette of an item) and counterfeiting (faux goods posing as designer merchandise) is razor-thin. Only artwork is protected: brand labels, logos, original prints and embroidery. The patterns -- or blueprints -- for garments and accessories are not. But many in the fashion industry consider the classifications ludicrous and are trying to have the law changed.
“There is no counterfeiting without design piracy,” designer Diane von Furstenberg said in an interview at her Beverly Hills estate. “It’s counterfeiting without the label.”
As the president of the New York-based Council of Fashion Designers, a nonprofit trade organization, Von Furstenberg is backing a bill pending in the Senate that would amend the Copyright Act. Dubbed the Design Piracy Prohibition Act, it would extend the protections in fashion design beyond artwork to encompass “the appearance as a whole” (the cut and silhouette) of an article for three years.
Though the bill has garnered strong support from Seventh Avenue, many L.A. fashion professionals have voiced doubt as to whether the bill could really make a dent in design piracy -- or if it will increase litigation in an already hyper-litigious industry.
Indeed, some of Los Angeles’ most established fashion companies have good reason to hope the bill falls short. Companies such as Bebe, ABS by Allen Schwartz and Forever 21 regularly cull design “inspiration” from New York’s runways, and if passed, the legislation may greatly curb this practice. Additionally, many of the West Coast’s biggest fashion exports fall into the denim and sportswear categories, genres that are less concerned with silhouette and shape than they are with flashy branding and artwork -- elements already protected under current laws.
But if passed, the bill could profoundly alter the way trends trickle down in the marketplace on both coasts. Last year’s ubiquitous tent dress, for instance, made its debut on the runways, but by early this year, versions of it were seen in every level of retail. Would there have been so many to choose from if a few top-brass designers had registered their takes on the design early on?
Von Furstenberg, for one, said the bill wouldn’t restrict designers from latching onto major trends in fashion, only deter them from copying looks verbatim. “It’s like locking your door,” she said. “Once people know you have locks, they won’t try it.”
Designers would be required to register garments with the U.S. copyright office for them to be protected, and all designs in existence before the passage of the bill (such as bell-bottom jeans) would be considered public domain. The bill, sponsored by Sens. Dianne Feinstein (D-Calif.) and Hillary Rodham Clinton (D-N.Y.), among others, is expected to come up for a vote early next year.
The U.S. is one of the only Western nations that doesn’t protect the overall design of garments and accessories. (In most of Europe, a garment doesn’t have to be registered for its cut and silhouette to be protected under copyright laws, though registering can afford up to 25 years of protection against design piracy). And other creative mediums here, including music and film, are more fully guarded against copyright violations.
Ilse Metchek, executive director of the California Fashion Assn., a nonprofit organization based in downtown Los Angeles, called pattern-making “a craft, not an art. There is only so much you can do with a silhouette, a collar, a drape. For the little designers who have that one great idea and it’s knocked off -- well, welcome to the real world, guys. Make another one.”
Metchek also cited the potential for more than one designer to conjure up a nearly identical idea within a small window of time. “Then they end up suing each other, depending on who registered it first,” she said. “This is not the way the fashion industry works.”
Johnson Hartig, designer and co-founder of Libertine (which recently settled a suit against Los Angeles-based ABS by Allen Schwartz for allegedly copying designs -- which Schwartz denied), said, “I love the bill theoretically, but I don’t think it will ever work. I think it’s next to impossible to enforce any of this.” He added, “Some of the biggest designers would be in court every other week for knocking off other people.”
Copycats have always been a thorn in the side of fashion designers, but never more so than today -- with fast-fashion retailers including Forever 21, H&M; and Zara churning out lower-priced versions of runway looks.
“Everyone has style now and everyone wants it immediately,” Hartig said. “That’s just our culture now.”
Ivan Arnold, co-owner of L.A.-based streetwear brand Tokidoki, has also fought back against alleged counterfeiters (settling copyright infringement suits against Forever 21, among others, before going to court), and though he concedes that counterfeiting “is among the most financially damaging things that could happen to an intellectually based company,” he worries that the bill could dampen creativity in the industry.
“This act is a double-edge sword, because designers think they’re going to be able to protect themselves from knock-off artists, but they are going to have to make absolutely sure there is pure, unadulterated originality in everything they do,” he said. “Wouldn’t anyone run afoul of things eventually?”
Kal Raustiala, a professor at UCLA with a specialty in international law, wrote a paper on the subject with University of Virginia law professor Christopher Sprigman titled “The Piracy Paradox” that’s become a hot-button document for both sides.
The paper contends that piracy is actually good for the fashion industry, as it promotes creativity through copying.
“That’s the genius of the fashion industry,” said Raustiala during a phone interview. “The act of copying by diffusing ideas promotes more innovation at the top.” When a coveted fashion item is created, Raustiala said, it’s everywhere in six months or a year -- a good thing in terms of propelling trends forward.
Yet in today’s fashion industry, it no longer takes six months to a year for high fashion to filter down through the hierarchy of retail -- from Neiman Marcus to Wal-Mart. Fast-fashion retailers are debuting their looks within weeks -- mocked up in Chinese factories from runway photos on fashion websites like Style.com.
L.A.-based Forever 21 has become one of the industry’s most demonized retailers. The tight-lipped private company has taken inspiration from top-tier houses including Balenciaga, Chloe and Chanel, and contemporary companies such as Diane von Furstenberg, Mike & Chris and L.A.M.B. Twenty copyright or trademark infringement lawsuits have been filed against Forever 21 this year, with Newport Beach-based brand Trovata’s the most recent.
Forever 21 didn’t return calls seeking comment; in the past, company representatives have said that as a rule, they do not comment on legal actions.
A former designer for the company discussed its design culture on condition of anonymity. “Copying is not discussed outright at the company,” the former employee said. “They are actually insanely afraid that people are going to be copying from them.” But unlike other companies where the former employee has worked, Forever 21 doesn’t run each collection by its legal department to ensure it isn’t violating any copyright laws. The former employee felt “I had free rein to copy. Often something would come back from production and it would be exactly like the original sample. They would say, ‘Oh my God, we did such a good job.’ ”
Still, the idea of democratizing fashion is a potent -- and often convincing -- platform for fashion’s most infamous copyists. Allen Schwartz, founder of the Los Angeles-based brand ABS by Allen Schwartz, has made the talk-show rounds on TV, flashing knockoffs of red carpet dresses that he sells for a song. Though his business is no longer centered on creating designer replicas, his opposition to the pending bill is a no-brainer.
“Words like ‘copying’ and ‘knockoff’ do not exist in my life,” Schwartz said. “If a long gown is worn by Nicole Kidman, that was a gown that Audrey Hepburn wore in the 1950s. And that dress is a copy of something that came before it.”
A passionate believer in egalitarianism in fashion, Schwartz added, “When you talk about this, it hits a nerve for me. It’s based on such an elitist attitude.”