Can "Bohemian Chic" Be Owned?

I’ve always found that it is wise to raise a ruckus about the first attacks on the integrity of a commons (which are invariably justified as innocuous, temporary or minor) because bad precedents tend to quickly metastasize. You blink twice, and the next thing you know the commons is enclosed. A shared resource is suddenly converted into private property.

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If Wal-Mart’s skirt (pictured here) is indeed a verbatim knockoff of the Anthropologie pattern design, then Anthropologie has a reasonable complaint. “Original” prints have always been protectible, and should be (leaving aside for the moment the issue of what’s “original”). But the news accounts of this lawsuit suggest that Anthropologie’s real objection is not about a single fabric pattern or two. Their real objection, it appears, is that Wal-Mart is moving into the upscale women’s fashion market by copying a “look.” (And where, one might ask, did Anthropologie acquire the “bohemian chic” look – by buying it from gypsies?)

In its complaint, Anthropologie claims that Wal-Mart “has embarked upon a conscious strategy of copying the designs of others as part of its effort to build its ‘cheap chic’ line.” It cites the fact that Wal-Mart opened a “trend office” in New York’s garment district to track of the latest fashion trends. Pretty alarming, eh?

Now, I realize that Wal-Mart can be remarkably nasty in its business dealings and is on the wrong side of lots of issues. But in this case, Wal-Mart is doing what anyone should have the right to do — participate in the fashion design commons. If Wal-Mart wants to come out with a “cheap chic” line of clothing, it should be free to do so. After all, the entire fashion biz is based on copying looks that originated elsewhere. Fashion is all about seizing ideas that are adrift in the culture, and developing less expensive versions of the top labels. If Levi Strauss had granted rights in denim jeans or if Burberry were allowed to “own” the trench coat, everyone would be hostage to a coterie of monopoly vendors selling pricey clothes.

The open design commons is what makes the fashion industry so creative, robust and accessible — a principle that applies to other creative sectors as well. Everyone must innovate like crazy to meet always-changing consumer demand. This is one reason why the apparel market is so responsive to changing tastes. No one can claim proprietary control over a “look” or genre of clothing. Only highly specific innovations — like patented types of fabric, copyrighted patterns or ornamental buttons — can be owned.

The perils of expanding proprietary control in fashion is evident in the work of boundary-pushing lawyers. A friend told me of a designer who made a small modification to standard-issue gingham fabric was able to claim sufficient “originality” to qualify for copyright protection. It may have been “thin” protection, but history shows that proprietary rights tend to expand when no one’s looking. Worse, IP bullies can frequently scare off imitators simply by brandishing their (dubious) “rights.”

We know how Disney took beloved fairy tales from the cultural commons and turned them into strictly protected “products” like Snow White and Br’er Rabbit. I shudder to think whether Wal-Mart will try to “take private” the lightweight cotton floral print A-line skirt. It probably would if it could. But if we keep the commons open — and ensure fair competition in the marketplace — no one’s likely to monopolize fashion design. And frankly, for all its aping of high-end clothing, Wal-Mart is not likely to become hip any time soon.

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