Friday, May 3, 2013
Posted by D. Daniel Sokol
C. Scott Hemphill, Columbia University - Law School and Jeannie Suk, Harvard Law School tell the story of The Fashion Originators’ Guild of America: Self-Help at the Edge of IP and Antitrust.
ABSTRACT: The question of intellectual property for original fashion design has attracted enormous public attention in recent years. As we show in this chapter, the question has a storied past.
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, and sought legislative protection. But they also pursued a regulatory solution, as part of New Deal responses to the Great Depression. They ultimately settled on an 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 (“Guild”), was a massive private IP scheme. At its height, a staggering 4000 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.
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 about fashion design protection: 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.