Copycatfight - The rag trade’s fashionably late arrival to the copyright party

For the past several years, as the music and movie industries have gradually consolidated ever more authoritarian control over their copyrights, the fashion industry has been held up as an implicit rebuke to their autocratic ways. Fashion, the story goes, is a similarly creative industry, yet it operates with essentially no prohibition against design copying. To many observers, this magical kingdom without laws does much more than simply survive without a blizzard of “cease and desist” letters; it actually seems to work rather well. The open and accepted practice of fashion designers “paying homage” to the designs of others isn’t seen as unpunished piracy, but rather as part of the normal creative flow upon which design itself thrives. And, although it is less exalted, the practice of mass retailers such as H&M and Zara selling knockoffs of high-style designs is seen as an accepted and important part of the fashion business.

This laissez-faire idyll may soon be a thing of the past, though. Lately there have been indications that the fashion industry wants to abandon its somewhat unique legal perch and dive into the same lawyer-filled waters in which the rest of the creative world swims.

[...] This is not the fashion industry’s first try at protecting design. As long ago as 1932, the industry organized a cartel called the Fashion Originators’ Guild, whose explicit purpose was to curb design copying. The guild’s coercive mechanism was a “declaration of cooperation” that retailers and manufacturers were required to sign, affirming that they would handle only original creations. Members risked fines and other penalties if they didn’t comply. By all accounts the system worked well enough and indeed curbed design piracy, right up until the day in 1941 that the Supreme Court decided it violated the antitrust laws. That ruling sent the design world down the permissive, copy-mad path that it has followed more or less to this day.

To say that clothing design currently has no protection against copying, though, is not to say that designers have no intellectual-property rights at all. [...]

[...] It is not hard to muster some sympathy for the changes the CFDA seeks. No longer would designers have to send models down the runway with their latest creations only to find that, through the wonders of digital cameras, the Internet, and mass-production facilities in faraway lands, knockoffs had arrived in discount stores seemingly before the model had finished her last sashay. It is also fair to ask, though, whether fashion’s current freewheeling system helps even those it sometimes hurts–that is, whether those designers who are occasionally copied are also themselves frequently copiers–and whether this open system ends up producing a more robust creative market than could exist in a regime with stringent design protection.

Da Vinci code of justice [pdf]

NO ONE OWNS THE FACTS OF HISTORY. Two British historians, however, are claiming title to a juicy historical myth at the core of the bestseller “The Da Vinci Code,” and their claim should trouble anyone whose book or film was inspired by someone else’s theories.

The dispute pits Richard Leigh and Michael Baigent, two-thirds of the writing team behind “Holy Blood, Holy Grail,” against Dan Brown and his similarly themed 2003 novel. Leigh and Baigent complain that Brown stole the “architecture” of “The Da Vinci Code” from their extensively researched nonfiction tome, first published in 1982.

[...] There’s more at stake here than Brown’s royalties. If the judge in London rules that the set of ideas Leigh and Baigent espoused can be copyrighted, it would set a troubling precedent that could trip up authors and filmmakers who craft works around any new historic or scientific research. It’s worth noting that a federal judge in New York rejected a lawsuit against Brown last year by novelist Lewis Perdue, saying any similarity between their books was in ideas that could not be copyrighted.

Copyright law is already too far-reaching, particularly in the U.S., where many works are automatically protected for 70 years past the author’s death. Perhaps the most important limit on that protection is that it does not apply to facts, ideas or theories, just expressions of them. Although the line between ideas and expressions can be blurry, it should be clear enough to let novelists and filmmakers build their fiction on a foundation of history — real or theoretical.

See also Tim Wu’s take: Holy Grail Wars: The latest battle over The Da Vinci Code — it includes this gem:

There’s another reason to treat claims to truth as facts. It relieves judges from the uncomfortable job of trying to determine what the truth is in the first place. Take the classic 1983 case of Blackie the Talking Cat. Blackie was a cat alleged to speak English, and his owner ran a business reliant on that ability. Based on Blackie’s speaking abilities, the owner argued that it would violate the First Amendment to force him to register his business. The courts hearing the case proceeded under the assumption, as claimed, that the cat could indeed speak. Why? Well, how exactly is a court supposed to prove that a cat cannot actually speak? He might just not be in the mood. In the end, a federal court threw out the case not because of the ridiculous claim that the cat had free speech rights, but for other reasons—among them, that Blackie the cat should have brought his own lawsuit if he could “speak for himself.”