The Fashion Originators’ Guild of America: Self-help at the edge of IP and antitrust

Abstract

The question of intellectual property for fashion design has attracted enormous public attention in recent years. One reason is fashion’s economic importance as a global business. Another is that fashion design presents an “edge” case for United States’ intellectual property, as fashion design lacks the robust copyright protection accorded to other types of creative activity. A third is the outlier status of the United States among countries with fully developed intellectual property regimes in withholding protection for fashion design. These features have given rise to renewed calls for protection, and active consideration of various legislative schemes to achieve that goal. The question whether to protect fashion design from copying has a storied past. Since 1914 there have been more than eighty proposals in Congress to provide protection for design. In the 1930s, as American fashion was coming into its own as a cultural force, designers worried about knockoffs. Then, as now, they lacked intellectual property protection for original fashion designs. In 1930, the Vestal Design Copy- right Bill proposed copyright protection for industrial patterns, shapes, and forms, which would have covered designers of fashion and other useful articles. The Bill was never enacted, mainly due to concerns that it was too difficult to determine whether one design infringed another. Fashion designers were discouraged by the rampant practice of design copying. Copies were often sold at a fraction of the price, even in the same stores as the originals. Although today the near-singular focus of fashion law reform is legislative reform, designers in the 1930s pursued a range of possible solutions in their attempt to stop those who reproduced their designs and undermined their profitability by selling cheaper copies. Then, as now, designers sought legislative protection. But they also pursued a regulatory solution, as part of New Deal responses to the Great Depression. They ultimately settled on a seemingly effective but controversial solution: a set of self-help measures targeting both copyists and retailers willing to merchandise knockoffs. The resulting boycott, devised by the Fashion Originators’ Guild of America (hereinafter the “Guild”), was arguably the “largest scale private intellectual property scheme ever implemented.” At its height, a staggering 4,000 new designs were protected each month. The designers’ organized efforts at self-help to create design protection eventually gave rise to antitrust lawsuits in federal and state courts, culminating in a pair of 1941 Supreme Court cases involving dresses and hats. This chapter tells the story of the Depression-era fashion designers, and the solutions they pursued to remedy the lack of intellectual property protection for their work. It describes the Guild’s formation and activities within the social, economic, and legal context of the Depression, and the fatal government scrutiny that eventually led to the Guild’s demise. Finally, it suggests some lessons as to both means and ends drawn from this story of fashion: about self-help as a private solution to a public lack on the one hand, and about intellectual property protection for design on the other.

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