Right now, designers pore over vintage magazines and patterns and visit museum archives in order to find inspiration for the next season’s look, cherry picking design elements that feel fresh and in line with the current zeitgeist. It’s a refreshingly open process unhindered by legal consultations. Those archives could become battlefields where litigants try to find evidence to support their assertion that a design is or is not unique. The geeky librarian in me is worried that some powerful people may attempt to limit access to particularly rich collections of design history and some unscrupulous types may destroy or hide rare materials that prove that their new design isn’t as unique as they claim. 

Historically, fashion designers have been denied copyright protection because the courts decided long ago that utilitarian articles should not be protected by copyright. Otherwise, a handful of designers would own the seminal building blocks of our clothing. Every time a new blouse would be made, licensing fees would need to be paid to the supposed originator of that particular sleeve or collar.>

Anyone familiar with the justification for copyright protection — without ownership there is no incentive to innovate — might be surprised by the critical and economic success of the fashion industry. A complex creative ecology has developed in the fashion world that balances a designer’s need to both stand out and fit in. Since anyone can copy anyone else, they do. The almost magical result of this process is the establishment of trends. Some designers have ascended to the highest echelons of the fashion world and are well-known for setting new trends with their original designs, but all designers admit that they’re inspired by “the street,” where people mix and match their own personal looks, combining a new Marc Jacobs bag with grandma’s vintage sweater with Army surplus boots. 

Of course this culture of copying has affected the creative process. One lovely side-effect is that high-end designers find themselves challenged to create truly innovative and surprising designs that they believe will be hard to knock-off. Stuart Weitzman, for instance, said that copyists forced him to innovate, as he did with the Bowden-Wedge, whose heel shape requires special materials like titanium or steel. A knock-off using cheaper materials would snap.

The ironic thing is that the fashion industry doesn’t really talk about how revolutionary it really is. The fact that people can steal from one another’s designs is often considered fashion’s dirty little secret.