Counterfeit Chic

I got an interesting email from a woman named Susan Scafidi this weekend. Susan is an associate professor of Law at Yale University and author of a book entitled Who Owns Culture?: Appropriation And Authenticity In American Law

Susan also keeps an interesting and engagingly written blog entitled Counterfeit Chic on the topic of intellectual property for mostly -believe it or not- fashion. What a find! Even better, Susan has volunteered to answer questions or author a post on the topic…what would you like to read? Be sure to add your questions and ideas under comments please.

I close this post with a blurb of Who Owns Culture? pasted in from Amazon:

Americans are cultural copycats. White suburban youths perform rap music, New York fashion designers ransack the world’s closets for inspiration, and Euro-American authors adopt the voice of a geisha or shaman. The ownership of these art forms, however, remains contested. Do they belong to the community that originally generated them, or to the culture that has absorbed them?

While claims of authenticity or quality may prompt some consumers to seek cultural products at their source, the communities of origin are generally unable to exclude copyists through legal action. Like other works of unincorporated group authorship, cultural products lack protection under our system of intellectual property law. But is this legal vacuum an injustice, the lifeblood of American culture, a historical oversight, a result of administrative incapacity, or all of the above?

Who Owns Culture? offers the first comprehensive analysis of cultural authorship and appropriation within American law. From indigenous art to Linux, Susan Scafidi takes the reader on a tour of the no-man’s-land between law and culture, pausing to ask: What prompts us to offer legal protection to works of literature, but not folklore? What does it mean for a creation to belong to a community, especially a diffuse or fractured one? And is our national culture the product of Yankee ingenuity or cultural kleptomania?

Providing new insights to communal authorship, cultural appropriation, intellectual property law, and the formation of American culture, this innovative and accessible guide greatly enriches future legal understanding of cultural production.

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  1. Alison says:

    This is more than a little OT for this site, but… what about the whole home-sewing patterns for commercial use thing? I read an article (I believe in Vogue Patterns magazine but it might have been Threads) a few years back that I am now unable to track down stating that a dressmaker can use a commercial pattern as many times as she likes as long as each time it’s fitted to a particular individual. Commercial home-sewing patterns are not licenced for production however, and you may not use them and make a bunch of identical items and sell them as RTW from your boutique. (So, one pattern can be used to make six bridesmaids dresses for the same wedding, because each dress is fitted to an individual bridesmaid. But no running off 50 aprons and selling them off the rack.)

    But I have also been told on various sewing fora – sometimes rather snippily – that it’s illegal to re-use a pattern. Which I simply do not believe, but I haven’t been able to track down the references I need.

  2. Kathleen says:

    Do you really think intellectual property rights is OT? Really? Wow, I get so many questions about IP. Heck, I even have a category set up for it, I get so many. Alison, I get so many questions on the whole patents/non-disclosure stuff and the potentiality of design theft that I can’t keep track of them.

    Now, I’d think the whole home sewing patterns thing would be OT for sure. And in the latter case, I think it’s more an issue of why would you use home patterns for production even if you “could”? Most of them are awful and the ones that aren’t, aren’t set up for production.

  3. Eric H says:

    No, honey, she is saying that her comment is OT.
    Alison, don’t mind her. After Engineers Gone Wild, Design Creep, and Dress Kathleen, I guess she’s a little unsure what is and is not OT. Your comment was not. Keep in mind that one of the frequent … um, …. “side” topics on this blog is people who have traits like “literal thinking” (**cough**ASPIE**cough**).

    However, even I know better than to use a commercial pattern for production 8~)

  4. Alison Cummins says:

    Kathleen, sorry, I was apologising in advance for my question: I should have made myself clearer.

    (And while I’m not an Aspie myself, I am very much a literal thinker. Hence my compatibilty with nerds and geeks.)

    Ok, so the reason I thought my question was OT is that we all know that home-sewing patterns are not to be used for production, and this blog is about production. But the reason I posted anyway is that I wanted to know. And to have a link to refer people to an informed statement in the future as required.

    And I also know that people do use home-sewing patterns for production – I believe particularly in the art-to-wear category, though we then get the question of whether art-to-wear matters or counts…

  5. Thanks for asking.

    The reason that home sewing patterns cannot be used for commercial production is not that this use is prohibited by intellectual property law, but that the patterns are usually sold under a license that prohibits commercial use. It’s just like when you buy or download computer software and click on an agreement not to share it with anyone else, or when you rent a videotape and agree not to charge others to watch it.

    Fitting several bridesmaids from the same pattern — great example, by the way — or making matching dresses for your daughter and her best friend is still private rather than commercial use. It would theoretically be possible for a company to sell a one-use-only pattern, but that would have to be made clear to the purchaser in advance.

    Federal copyright and trademark laws would also prohibit photocopying a pattern and selling the paper copies, but that’s a different issue.

    I hope that this helps (even if you all already knew the answer!).

    And thanks for the props, Kathleen!

    Susan Scafidi

  6. I know of a designer who recently patented an article of clothing. I previously learned that patents were nearly unobtainable on fashion, except for technological innovations, like astronaut’s clothing. Is the patent office becoming less lenient?? I’ve also asked the designer of the article in question to explain which aspect of her garment –which doesn’t seem like a huge innovation (think: little red riding hood)–is patented.

  7. Thanks for the question, Jinjer. There are several kinds of patents, and the one we usually think of when we say “patent” — technically a “utility patent” — is very difficult to obtain for fashion items. You’re exactly right when you say it’s limited to technical inventions, like a space suit, or velcro, or an innovative method of achieving a flat seam.

    However, there’s also something called a “design patent,” which protects the aesthetic elements of an object rather than its functional ones. These patents are still expensive and time-consuming to get, and are often used in other industrial design fields, like automobile manufacturing (think the grille on the front of a Rolls Royce, for example). They’re not very useful for a garment that will only be in fashion one season — by the time you get the patent, the item would be out of style and out of stores — but a longer-lasting accessory or fabric pattern might be a candidate for a design patent.

    All that being said, I don’t know what kind of patent the little snowman cape coat received. From the photo, my thought is cute, but not exactly a scientific breakthrough, so my guess would be a design patent. However, there might be some innovative detail that I can’t see. Then again, patent examiners (like all of us) sometimes fall asleep at their desks. They are hired as experts in their particular fields of science and technology, but sometimes a not exactly original invention slips through, which is why patents can be challenged legally.

    Under the FAQs on my website,, there’s more info on IP protection for fashion. And once again, thanks to Kathleen for running such a great site!

  8. Marilyn says:

    I just have to ask this — since most of us have 2 legs and all pants patterns have 2 legs along with minor details and modifications, what criteria is used to differentiate one copyright from another or the image licensed from another? I met a woman who wrote a cookbook and she said that if you change an ingredient from 1/4 teaspoon to 1/2 teaspooon, the recipe is technically different. Thanks–I love your website.

  9. Nicole says:

    Does anyone know how to get in touch with Susan? She is using a photo which I’m modeling in and had a friend take with my camera. Thanks for any help!

  10. Burgundy says:

    Thank you Kathleen! And Susan! I recently asked a question under Sales & Marketing and now see that it truly belongs in the IP category.

    Back in November, I created a few t-shirts inspired by the Twilight book series. The designs are of my unique character (which is my logo and that I have many variations of i.e. the original, an angel, a cheerleader, etc) with the hairdos of three of the book characters and their respective names.

    What I thought was still mostly “my stuff with a twist from a great book” has now become something that I just spent an hour discussing with an attorney who specializes in trademarks and copyrights.

    My question is this: how are we regular people supposed to know we are infringing when it’s not an obvious replica? When we didn’t just copy the paper of the person sitting at the desk next to us?

  11. Kathleen says:

    My question is this: how are we regular people supposed to know we are infringing when it’s not an obvious replica? When we didn’t just copy the paper of the person sitting at the desk next to us?

    Unfortunately, as a business owner, the responsibility of due diligence is yours. Call it one of the joys. I’m being facetious of course.

    An easy test to know whether it infringes is whether or not your product idea could stand on its own, without being linked to or inspired by someone else’s property. Or, compare the situation to something better known. For example, if you made up tees based on disney characters, one could rationally assume they’d raise the ire of disney. Lastly, consider how you’d feel if the shoe were on the other foot. How would you feel if someone used your brand and riffed off your themes to come up with products that capitalized on it?

  12. Burgundy,

    The other answer to your question is… you aren’t ever going to know everything. The less experienced you are the less you know the right questions to ask. Which is why you are so glad that you bought The Book and joined the forum! So you can ask the wrong question and bring down hordes of shrieking DEs more experienced than you are, all terrified that you’re going to make a blunder, and then you can get worrried and call an attorney.

    Which it’s much better to do at this stage of the game than later.

    So don’t worry, you’re on the right track.

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