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Consumers Want Instant Gratification and Designers Are Benefiting

As New York Fashion Week (#NYFW) comes to a close, spectators may have noticed something different after the finale of each collection on the runway. People are calling it See Now/ Buy Now, and this isn’t the first time it is being done. As far back as March of 2016, designers began experimenting with the availability of their runway collections. Seeking a solution to the consumers desire to have instant gratification, fashion houses are employing new business models. Not only does this new model benefit consumers, but it also benefits designers who struggle to prevent fast fashion retailers from running off the catwalks with their design ideas.

Last week, Snapchat captured black trash bags tied with white Alexander Wang bows leaving an unmarked white van. On the side of the van was Alexander Wang’s name with an upside down Adidas logo on the truck (#AdidasOriginalsxAW). After Wang’s show, he made the first nine styles of the collection available on the streets of New York City just after the 84-piece collection debuted on the runway. This is just one example of what the See Now/Buy Now business model may look like. Wang isn’t the only one selling pieces from his collection minutes after the runway finale. Other designers like Burberry, Ralph Lauren, Michael Kors, Tom Ford, and many others are doing the same.

While the See Now/Buy Now model may be a direct result of advances in technology, like social media, shortening fashion cycles, the designers may desire to take up the new model for an additional reason that may help curb some competition. The competition—fast fashion retailers. Fast fashion retailers are those that pride themselves on quickly moving merchandise from the designer’s table to the retail sales floor. Most fast fashion retailers are known for their inability to replicate designs in a legally sound way (aka plagiarism). They are also known for their inexpensive pieces, which may be the result of sweatshop production. Fast fashion may be seen as competition because some of their business models are essentially built on the basis of copying consumer’s favorite pieces from the high-end collections and selling it to the public before the high end item is available for purchase. For example, if you see a popular piece on the Michael Kor’s runway in September, under a traditional model, that piece would not be available for purchase in stores or online until Spring/Summer 2017. Therefore, fast fashion retailers like Forever 21 copy the popular piece from Kor’s collection and put it in their stores at lower prices before Kor’s original can be bought.

So at this point you may be wondering why it is okay for fast fashion retailers to copy. Under federal copyright law, useful articles, like clothing, are not protected. United States copyright laws are derived from The Copyright Clause—Article 1, Section 8, Clause 8 of the Constitution—and the First Amendment to the United States Constitution. The Copyright Clause reads, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Furthermore, the First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” According to the First Amendment Center, “Copyright allows creators of expressive conduct to control the flow of certain information and expression, while the First Amendment ensures the free flow of information and expression.”

Copyright affords protection to the creator for his or her artistic, expressive work. “The United States copyright law is contained in chapters 1 through 8 and 10 through 12 of title 17 of the United States Code.” Under 17 U.S. Code § 102, “Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Protection automatically attaches to the original work at the moment of its creation and fixation. More specifically, works of authorship may include categories like literary works, musical works, pictorial, graphic, and sculptural works along with several others.

As mentioned above, designers are not afforded protection for “useful articles.” According to U.S. Copyright Law, a useful article is “an object having an intrinsic function that is not merely to portray the appearance of the article or to convey information. Examples include clothing, furniture, machinery, dinnerware, and lighting fixtures.”

Although copyright does not afford protection to clothing like t-shirts, pants, and dresses, the elements and designs incorporated within those pieces may be protected. Copyright does protect any “pictorial, graphic, or sculptural authorship that can be identified separately from the utilitarian aspect of an object.” For example, the owner of Lilly Pulitzer’s intellectual property, Sugartown Worldwide, filed a copyright infringement suit (Sugartown Worldwide, LLC v. Old Navy, LLC, et al) against Old Navy for its “High Tide” and “Sparks Fly” textile designs. (see below images from the Complaint)

In the Complaint, Sugartown Worldwide alleged that Defendant, Old Navy, “sold apparel incorporating designs that [were] substantially similar to Sugartown’s copyrighted designs, without Sugartown’s authorization . . . and [such use has] caused and will continue to cause irreparable harm to Sugartown, absent relief from [the] Court.” On January 26, 2016, the parties filed a Joint Motion for Stay of Proceedings to allow the parties to finalize a settlement agreement. Almost a month later, both parties entered into a Stipulation of Voluntary Dismissal on February 19, 2016.

Although many copyright infringement suits stemming from alleged copying of fashion designs have resulted in settlements, individuals in the fashion law industry are looking for guidance on how to determine precisely what design elements may be protected under U.S. Copyright Law. Currently, those same individuals are awaiting a ruling from the U.S. Supreme Court over the protection of cheerleading uniforms. (Star Athletica, LLC v. Varsity Brands, Inc.) In such a case, there is much more at stake than five uniform designs. The case will set a precedent for carving out a clear legal test for how to determine when certain design elements of clothing may be eligible for protection. As we await a Supreme Court ruling in the battle over cheerleading uniforms, one thing we can be sure about is the expansion of the See Now/Buy Now business model. It is a win for both designers and consumers.

#NYFW #FirstAmendment #Copyright