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September 30, 2006

Semiotic Disturbance

What would Roland Barthes think of this?

Thanks to janoid for taking this photo in Turkey and posting it on Flickr.

September 28, 2006

Ready for My Close-Up

Hollywoodtown, here I come!  Many thanks to Stephen Galloway of The Hollywood Reporter, Esq.  for his smart and stylish article, "Fashion Police," in this week's issue -- and for dubbing your humble blogger "The Legal Fashionista."  (I'm sure some of you won't let me forget that one for a while!)  Although Stephen declines the title of "fashionista" for himself, he tells me that he wore a Varvatos jacket for our telephone interview, so he certainly knows his threads.  And his words. 

And now, if you'll excuse me, I have to powder my prose before the next take. 

September 27, 2006

Bitten

Do indie designers -- fashion and otherwise -- mind being copied by large commercial enterprises?  Especially without attribution?  Rather than hang around debating the question, check out the forthright and righteous site You Thought We Wouldn't Notice... for direct responses to "biters" (and great pictures). 

September 26, 2006

Knockoff News 33

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

And for those of you who thought that everyone celebrates a bull market:

Wall Street bull

September 25, 2006

What's in the Bag?

Head over to The Trademark Blog for an amusing U.S. Chamber of Commerce public service announcement on counterfeiting -- and the truth about why oversized bags are "in" this season.  Again.

Logo Sampling

The Black Style Now exhibit at the Museum of the City of New York is a multifaceted tour of African-American influence on fashion, from celebrity style icons to historical photos and media images to talented designers and their work.  Among these original creations I particularly enjoyed seeing Jeffrey Banks' "classics with a twist" and Sistahs of Harlem's "street couture,"  as well as Stephen Burrows' landmark contributions from the late 1960s and early 1970s.

But I was stopped in my Counterfeit Chic tracks when I reached the hip-hop section of the exhibit.  The association between established fashion brands and rap or hip-hop artists is frequently noted, as is the copyright controversy surrounding the practice of "sampling" bits of others' music to create new works.  Less popular attention, however, has been accorded the contemporaneous practice of "sampling" luxury logos to create new fashion.

Dapper Dan In describing this glazed calfskin topcoat screened with the LV logo, the curator notes, "In the early 1980s, Harlem-based design entrepreneur Dapper Dan recognized the selling power of luxury.  He created customized high-end products that incorporated highly recognizable accessory logos like those of Gucci and Louis Vuitton, featuring them in non-traditional ways.  His clients included Biz Markie, Salt-N-Peppa, Big Daddy Kane, Roxane Shante, and Don King.  Before Nike itself started making clothing, Dapper Dan created apparel with the Nike logo.  The result:  one-of-a-kind clothing that provided the wearer with instant visibility."

In artistic terms, music sampling and the incorporation of luxury logos into new works of fashion appear to flow from a similar approach to creativity.

In legal terms, however, the "sampling" of a designer logo is distinct from music sampling.  In addition to the difference in intellectual property regimes -- trademark for the former, copyright for the latter -- it is far more likely that the sampler will use an entire logo as compared with a few seconds of a musical work.  

But should trademark owners object or look the other way?  It's a matter of degree and of business strategy.  Depending on the quality, transformative nature, and scale of distribution of the work, creations like Dapper Dan's aren't necessarily bad for the trademark holder.  In the right hands, street fashion can make established labels newly trendy by association, much the way that fan fiction strengthens ties between consumers and an existing creative structure.  The MCNY curator's description even raises the question of whether Nike was inspired by Dapper Dan, in addition to the reverse.  In the wrong hands, however, sampling is little more than simple counterfeiting -- a trademark holder's worst nightmare.  Moreover, trademark owners must police their marks or risk their becoming generic.

As in the case of music, African-American styles from zoot suits to modern urban streetwear have historically been more likely to be appropriated by mainstream culture than to appropriate it -- a circumstance over which creative designers have no legal control.  The rise of luxury logos and their appeal to hip-hop culture have prompted examples of appropriation in the other direction.

P.S. For more on the branding and modern culture, check out Rob Walker's insights on Murketing or his NYT Magazine Consumed column on "Tribute Brands."

September 23, 2006

L.A. Story

In a series of three short clips on YouTube, mnew00 records a large counterfeit bust in the clothing district in Los Angeles.  "Counterfeit Bust 1" show individuals watching the police confiscate counterfeit goods; "Counterfeit Bust 2" includes confused passersby, to whom the videographer explains that the goods are fake; and "Counterfeit Bust 3" shows the bagged goods in the aftermath of the bust.  The number of TV cameras present seems large even for L.A., a city in which events and people only exist if they're recorded on film, so my guess would be that the press was invited along on this raid.

Looks like Hollywood stars feigning a desire to hide from the public will have to wear real designer sunglasses this weekend.

September 21, 2006

Project Runway Fan Favorites

Project Runway fan April Winchell received a copy of Entertainment Weekly featuring Tim Gunn and Heidi Klum...

... and was inspired to recreate them in the form of stuffed dolls, put them for sale on eBay, and offer to donate a portion of the proceeds to charity.  As April says, "It's uncanny, isn't it? Well, I mean besides the fact that Heidi Klum has two eyes in real life, and Tim Gunn's eyes aren't on one side of his head like a flounder. I mean overlooking all of that, it's pretty dead on, right? Not only that, but the Heidi doll is pregnant. And barefoot. Now how much would you pay?" 

Are the "Winchies" amusing?  Sure. 

Legal?  Well, as long as neither Tim nor Heidi objects.  When it comes to "rights of publicity," the quasi-intellectual property rights of a celebrity to control the economic exploitation of his or her own image, state laws are all over the map.  In one well-known and frequently debated case, Samsung's use of a robot in a blonde wig and evening gown to evoke Wheel of Fortune's Vanna White was considered an infringement.  White v. Samsung Electronics America, Inc., 989 F.2d 1512 (9th Cir. 1993).  Of course, Samsung in that case was using the "Vanna" character to sell consumer electronics, whereas April is arguably parodying the Project Runway folks and the celebrity hype of the magazine.  And are Tim and Heidi likely to object?  One would hope not -- they'd lose far more in terms of reputation by antagonizing fans than they could hope to gain by challenging their felt and glue avatars. 

As for Entertainment Weekly or Project Runway, they could advance copyright and trademark claims regarding the eBay listing -- but their lawyers, too, probably have better ways to spend their billable hours.  So my guess would be that our google-eyed friends are safe for now.

Hat tip to Blogging Project Runway.

P.S.  For an authorized -- and far more flattering -- toy likeness of Tim Gunn, check out his bobbleheads, now adorning stylish desks everywhere.

September 20, 2006

Clash of the Titans: LVMH v. eBay

How treacherous are the waters of eBay?

French newspaper Le Monde reports today that LVMH and Dior Couture are suing eBay and its Swiss subsidiary in French court over their failure to police the sale of counterfeits.  According to the article, LVMH is claiming 20m euros and Dior Couture 17m euros in damages and interest from counterfeit sales that occurred between 2001 and 2005.  The companies further note that in the 2nd quarter of 2006, there were 150,000 listings for Louis Vuitton bags and 300,000 listings for Dior products, 90% of which were fake.

While eBay has not yet commented on the lawsuits, a spokesperson described its VeRO (verified rights owners) program, which allows trademark owners to request the removal of counterfeit listings.  LVMH believes that the program is inadequate and that eBay privileges certain large sellers, a charge that eBay denies. 

The claims may be limited by E.U. and French laws that protect internet hosts from liability. LVMH lawyers argue, however, that eBay is not merely a host but a provider of services, a strategy that resulted in success against Google earlier this year.  THe lawyers for LVMH liken this approach to suing landlords who rent space to counterfeit retailers.

By suing eBay, LVMH and Dior Couture join Tiffany and Danish clothing company Aktieselskabet Af, which have brought claims against eBay in the U.S. and China, respectively. 

Is it reasonable to ask eBay to pre-screen every item offered for sale?  Probably not, given the scope of its operation and the large numbers of low-ticket sales.  Is VeRO an adequate solution?  Probably not, if the statistics offered by LVMH and Dior Couture are correct. 

From a consumer perspective, fakes on eBay are particularly insidious; many claim to be "100% authentic," and there is no way for a potential bidder to inspect the goods.  Even the pictures online are often copies, as opposed to photos of the actual merchandise offered for sale.  So what's a girl looking for an online bargain to do?  I've always assumed that counterfeiters read anticounterfeiting tips, with an eye to circumventing them, as often as consumers do.  Still, here are a few thoughts (and please feel free to email me your own):

  1. Be suspicious.  If the item is sold out everywhere but the seller has somehow acquired one (or more), it's probably fake.
  2. If the price is too good to be true, it's probably fake.
  3. If the seller accepts returns for a large "restocking fee" -- e.g. 20% of purchase price -- it's probably fake.
  4. If the seller has very few previous sales but seems like a professional, ask yourself whether this might be someone who has been banned before and returned under a different name. 
  5. Consider the location of the seller.  Although a dear colleague noted yesterday that the "fakes come from Asia" meme can easily slip into an orientalist bias, a point with which I agree, it remains the case that at the moment a great deal of large-scale counterfeit production is occurring overseas.  (Of course, a great deal of legitimate production is also taking place in China, and fakes come from Europe and the U.S. as well.) 
  6. Buy only from trusted sellers.  Some watchdog groups like My Poupette keep lists.
  7. If you're on a budget, consider avoiding the counterfeit question altogether and buy a cool, no-name "stealth bag" or other fashion item from an indie designer.  Sure, the idea of a logoed "it bag" at an unbelievably low price is tempting, but internet roulette is not a buyer's game.

September 19, 2006

Critical Mass

Law enforcement can't do it.

Many retailers won't do it.

The U.S. Congress hasn't tried to do it -- yet.

But the sharp pens and sharper tongues of fashion critics are working hard to reinforce the social norms against copying within the fashion design community.  While designers are legally free to copy one another's work, at least in the U.S., doing so runs the risk of harming a designer's reputation.  The fashion press celebrates new looks or the fresh expressions of an established designer's signature style, but woe to the previously celebrated designer who borrows too liberally or literally from another. 

Consider the following reputational slaps on the wrist during the recently concluded New York Fashion Week:

Calvin Klein Spring 2007From WWD:  Guests at Calvin Klein didn't realize they were in for a ride, but on Thursday, Francisco Costa charted a direct course for Helmut-land.  He opened with several subtle dresses layered in wafting gauze, but the unsubtle nature of his homage to Helmut Lang was stunning.  From the show space to the clothes themselves, Costa echoed a very specific phase in Lang's career:  his artsy, ethereal stage.  Dresses fluttered with too-familiar streamers and were cut in a very distinctive palette that had some wondering aloud if Helmut's longtime collaborator Melanie Ward was backstage (she wasn't).  It's unfortunate for Costa that, after stepping out of Calvin Klein's shadow, he'd step into Lang's.  But simply put, he should know better.  But for those who don't know better, or who just don't care, there were attractive pieces to be found....  And yet, like the song says, it's never as good as the first time.

Suzy Menkes of the International Herald Tribune agreed:  At Calvin Klein, Francisco Costa, far from projecting forward, seemed to be shrinking back into fashion history with a collection that had some pleasant pieces, but seemed in thrall to other designers. With the bright, white space and high-tech vision that belonged to Helmut Lang in the 1990s and the full-shouldered silhouette of Claude Montana in the 1980s, Costa seemed to be turning back the clock.

Suzy also had cautionary words for Michael Kors:  The vibe was Degas meets Donna Karan in the 1980s. But the best looks were Kors's own: his luxurious sportswear given a touch of sweetness when a chiffon skirt twirled over a stretch bodysuit.

And in the New York Times, Cathy Horyn expxressed disappointment in yet another desinger's offerings:  Catherine Malandrino certainly has a signature in her French-casual sportswear.  It was hard, then, to comprehend what she was up to on Thursday:  models on a raised runway in funnel collars of the Claude Montana genre.

Certainly not every homage to another designer is blameworthy, and general trends are often inspired by particular eras or masters from the past.  No law could or would try to limit this sharing of inspiration.  But within the creative echelons of the fashion community, where the opinions of editors matter, the reputational gatekeepers accord acclaim to originals and blame to copies. 

September 18, 2006

Knockoff News 32

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

And for those of you who will be following New York Fashion Week with trips to London, Milan, and Paris, the French government has posted reminders regarding its anticounterefeiting laws, which penalize consumer behavior as well as the manufacture and sale of fakes (via Flickr photographer Mwin Mwin):

September 16, 2006

Talking Head

Yesterday morning, your humble blogger appeared live on ABC to discuss -- you guessed it! -- fake fashion.  I thought that the producer and anchor did a wonderful job of incorporating a great deal of information in a short time; if you've got 7 minutes or so, here's the video.

I've been interviewed on TV before on various subjects (the patentability of broccoli sprouts was a particularly surreal moment), but never by an anchor at a different location.  So if you're wondering what I was glancing at just off camera, it was the monitor -- it's surprisingly difficult not to look at someone who's asking you questions, even if they're just on a screen!   

September 15, 2006

Television Time Out 2

If you've followed Project Runway and the speculation regarding a copying scandal earlier this season -- or even if you haven't -- it's time to take a break from reality television and get back to actual reality.  Head to Season 2 contestant Emmett McCarthy's EMc2 boutique in New York tomorrow and meet Emmett and fellow Runway alumni Chloe Dao, Kara Janx, Alison Kelly, and Nick Verreos as they show off their new fall lines. 

Best of all, America's dean of fashion Tim Gunn has been cloned -- as a bobblehead doll.  He'll be there in person tomorrow from noon until 3pm, dispensing his characteristic words of wisdom and nodding and smiling along with his plastic pals. 

 

September 14, 2006

Loose Threads

Logo

Is the sweet little grey-haired lady with the embroidery sitting on her lap somebody's dear old granny -- or is she a software pirate?

Perhaps both, according to the Embroidery Software Protection Coalition

Before the internet era, those talented with a needle and thread often bought designs from specialty shops, transferred the outlines to fabric, and used intricate hand stitching to create finished projects.  Today, embroiderers often download designs to embroider by hand, or even use software and computerized sewing machines to execute their visions. 

The issue is that many of those designs are subject to copyright, as is the software.  So when granny shares her new embroidery pattern or software with her online sewing circle, she becomes a copyright infringer.  Similarly, if an ambitious embroiderer with a high-tech machine pays for a design and then whips up multiple copies to sell, she may be violating the terms of a license which allows personal use only.

The Embroidery Software Protection Coalition has a point -- but it's sharp enforcement efforts have drawn criticism.   It is alleged that the Coalition has not only targeted those who distribute copyrighted designs or design software without authorization, but also those who have purchased the designs without realizing that there may be a copyright infringement question or who have distributed public domain works.  In addition, the Coalition has threatened to sue online protesters for defamation, even going so far as to send a subpoena to Yahoo in an attempt to identify the members of one online embroidery forum.  Enter the EFF, which successfully defended the right to stitch and bitch anonymously -- for now. 

Keep your thimbles ready, folks.  The music industry's enforcement efforts against college students are one thing, but those little grey-haired ladies are tough customers.  There will definitely be some pricked fingers before this one is over. 

Many thanks to friend and computer guru Rich Schinnell, who sent me this link earlier in the week.  (Yes, Rich, this is a real copyright issue, even if it the ESPC's demands for payment may make it look like some kind of shakedown.)  Today's Wall Street Journal also has an article on the dispute. 

September 13, 2006

That's the Ticket -- Or Is It?

Design pirates apparently aren't the only copyists inspired by New York Fashion Week. 

According to Slate, the word at the Bryant Park tents last night was that someone had printed 6,000 counterfeit tickets to the Heatherette show, drawing uptown the downtown fans of design duo Richie Rich and Treavor Rains.  Those who made it inside to see the show were apparently not disappointed.  Check out the little number below:

September 12, 2006

Noteworthy Knockoffs

Love 'em or hate 'em, fakes are a cultural phenomenon, celebrated (or reviled) in song and story.  Scroll down for three bands that have apparently eschewed the philosophical quest for authenticity and embraced their inner fraudulence...and one in the intellectual property equivalent of suspended animation.  No question about what to wear to these concerts!

  Hong Kong Counterfeit

Hong Kong Counterfeit

 

The Knockoffs

The Knockoffs (cf. this logo, which copied this logo)

 

The Counterfeits

The Counterfeits

 

Patent Pending

Patent Pending

September 11, 2006

Welcome Wall Street Journal Readers!

An article in today's Wall Street Journal asks, "Can Fashion Be Copyrighted?" -- and, like the post-recess and pre-election Congress, probably leaves the question unanswered for now. 

As WSJ reporter Ben Winograd was preparing this article (with co-author Cheryl Lu-Lien Tan), he and I had an interesting conversation.  Ben described himself to me honestly as neither a fashionista nor a student of intellectual property, and seemed frankly a bit skeptical of the whole enterprise -- but as a journalist and thus a member of a copyright-dependent industry, he expressed interest in the broader issues at hand.  Thus the following excerpt from our discussion, as quoted in today's article:

Fashion design has historically fallen outside the scope of coyright protection because it was considered a craft, not an art, dating back to a time when clothing served to simply cover the body, says [your humble blogger].  Today, "fabric is a means of expression, just like pen or ink," she says. 

Thank you!  Although to clarify, I think that clothing has been a communicative medium (deliberate or incidental) from time immemorial.  A chieftan's robes or a beggar's rags both send a message, and so did Adam & Eve's fig leaves.  As with other technologies, however, the last couple of centuries of industrial development have increased the expressive potential of the medium -- and the opportunities for plagiarism.  And, of course, the need to consider legal intervention to protect creators from copyists. 

Overall, I'm very pleased that Ben picked up on the historical art/craft distinction that I've been discussing publicly for some time now and even described it in the opening of the article as the "central question" to be resolved in the debate over protection for fashion design.  (Definite "yes!" from this reader.)  Of course, my argument is that the distinction is a false one, imposed on us by history, but I'll save my questioning of the entire structure of the IP system for another day.

I must add that I was amused by the article's quoting the sanctimonious concerns of copyists that legal protection might harm creative designers or the industry -- talk about crocodile tears!  That line of argument says more about the speakers themselves and their use of others' work (in any medium) than about the fashion industry.... 

The Usual Suspects:  A Versace gown (on Evangeline Lilly) copyied by A.B.S.

September 09, 2006

Knockoff News 31

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

And finally, the Museum of the City of New York kicks off Fashion Week with an exhibit devoted to African-American style -- and Wall Street Journal reporter Teri Agins comments on the challenge of knockoffs to emerging designers:

The bottom line, Agins said, is the bottom line.

“The business is tough. There are knockoffs, and counterfeit product is something you see on Canal Street,” in Manhattan, Agins said. Because of the Internet and digital photos that can transmit a look anywhere in the world within minutes of it crossing a runway, “it’s hard for any designer to break in and establish a look.”

September 08, 2006

The President's War on Copying

To kick off New York Fashion Week, Wall Street Journal reporter Teri Agins asked fashion icon and CFDA president Diane von Furstenberg a few questions about the state of the industry.  Here's what DVF had to day about the counterfeit question:

WSJ:  What are the biggest challenges facing the industry today?

Ms. von Furstenberg:  .... Another problem is counterfeiting and how quickly they just replicate designs from fashion shows.  They copy you, and it gets into the market before you even ship.

WSJ:  Why is the American fashion industry pushing for copyright protection for apparel makers in the U.S.?

Ms. von Furstenberg:  At first, my attitude was, "Oh well, my clothes are copied everywhere.  There's nothing you can do."  And then I started to see how they pull it from fashion shows and copy it.  You can see it on eBay.  I started to say you have got to have some rules.  You have to do something.

Laws are created to intimidate people [with the threat of litigation], to tell them no, you don't do that.  The more I talked about it, the more I realized this is good for everybody.  Even if you can't stop everything, they wouldn't be boasting about it.  By passing a law and protecting design, you elevate the whole industry.

WSJ:  People argue that copying propels the fashion cycle because it creates trends.

Ms. von Furstenberg:  You will still have trends.  Why all of a sudden is everything yellow?  Why all of a sudden do young girls wear combat boots?  It starts from the street.  That's the mystery of fashion.

September 07, 2006

Silversmith Hammered by Copyists

Silver pendant by Nancy Hazleton
Creative Counterfeit Chic reader and jeweler Nancy Hazleton sent the following email describing how widespread copying has affected both her business and that of fellow artisans:

I am a silversmith in Tucson, Arizona. It is impossible to compete with southeast Asians, making three dollars a day, and copying my designs. I would like to blame both globalization and the Internet but that wouldn't be productive. I guess the genie is out of the bottle. My only solution is to do custom work and fill a niche market.

If you go on eBay, there are so many people selling fake Native American jewelry.  It's definitely caveat emptor as some of the stuff is technically quite good. It sure makes it hard for Native silversmiths, though. Many refuse to have websites as they have been ripped off so many times. So, they end up selling at craft shows, a really lousy way to make a living.

From a legal perspective, this story is interesting because jewelry (unlike clothing) actually can be copyrighted.  And although Nancy isn't Native American, silversmiths who are have an additional level of protection under the American Indian Arts & Crafts Act of 1990, which doesn't prohibit copying but does provide that goods can't be falsely labeled "Indian" or "Native American."  As is frequently the case, however, enforcement would be time-consuming and expensive, so Nancy and many of her colleagues follow other stragegies.  Its unfortunate, though, that the internet in this instance is a hindrance rather than a help for talented creators.

Unless, of course, some of you happen to fall in love with a Hazleton original....

Waveset by Nancy Hazleton

September 05, 2006

Knockoff Nudes

Visit this week's New Yorker cartoon caption contest (#63) -- and vote for the third entry! 

And in the meantime, here's a much earlier knockoff:

Roman copy of Myron's Discobolus, 5th century BCE

Of course, given the modern American physique, it's no wonder that so many knockoff artists prefer to produce clothes....

September 04, 2006

School of Hard Knockoffs

When Gerard Murray founded the urban sportswear company School of Hard Knocks, he didn't expect it to become a multimillion-dollar empire.  He probably also didn't expect one of life's hard knocks to come in the form of knockoffs. 

Murray, pictured below in a Network Journal profile from 2003, wears a T-shirt with his company logo:

And here's a version from Target, imported by Multinational Trading Co., with the same theme but a more Ivy League vibe:

SOHK Sportswear has filed a complaint alleging that Target's T-shirts infringe SOHK's trademarks and violate New York state law.  While SOHK presumably doesn't claim to have coined its trademarked phrase, it has been in the apparel business under the same name for 13 years.  And now it intends to take the retail giant to school. 

September 02, 2006

If Ibsen Were a Project Runway Fan

Blogging Project Runway reports that the garments created on the reality TV show have been knocked off and sold -- in miniature.  Fans are apparently buying elaborately costumed dolls (where else?) on eBay. 

From this season's first episode, here is former Barbie designer Robert Best's dress (front and back views):

And Robert's former client all dolled up:

Episode 2 winner Kayne Gillaspie dressed Miss USA Tara Conner for her trip to the Miss Universe competition, and inspired a small-scale counterpart as well:

Legal?  Sure, apart from any misuse of the show's trademarked name or copyrighted images in the auction listings, or perhaps rights of publicity concerns in the case of Miss USA.  So long as full-sized knockoffs are legal, so are the doll-sized versions. 

Of course, in Ibsen's version, the doll would someday awaken and design her own outfit....