Conceptual Separability – Fair Trade Facts and Fashion Law

Tom Ford Spring 2012
Original Romanian blouse

This TOM FORD blouse sells for $4,900 in boutiques in the U.S. and around Italy. The original Romanian hand-made blouse sells for 110 Euro here

How can a blouse obviously copied from this original Romanian design sell for 40 times the price? No royalties are paid to Romanians.

Art is difficult to protect – unless the origin is obvious to the general public. Most folkloric textile patterns are not immediately recognizable as to the region of the design. This makes textile embroidery and design difficult to patent or copyright.

The general rule within the fashion industry is that if a design is “changed 3 times” or is altered at least 60% then it is “legal.” In the example above the design is obviously not changed at least 60% so how is it this is legal? What is even more egregious to the original cultural property is that if a brand were to “knock-off” this Tom Ford design – Tom Ford could file suit against the knock-off. Does nobody else see that the Tom Ford is the knock off? And why shouldn’t UNESCO or a Romanian non-profit be able to bring suit against Tom Ford for stealing cultural property?

 

 

The concept of conceptual separability becomes important but also contentious in the fashion industry. Under the law when an item is considered purely decoration then it can be protected under copyright. When an item’s design can be separated from its utility it can be protected:

Capture1

The question in this case is then  -can the ie’s design be separated from it’s utilitarian function? The
answer is an unequivocal ‘YES’ – in my previous post I link to and described the function of the ‘ie’ as a folkloric symbol used in rites of passage and special occasion. This is not just a ‘blouse’ with a nice design.

In my next post I will discuss the deleterious effect of this violation of cultural capital on developing countries such as Romania and other developing countries. I will continue comparing and evaluating other examples where “designers” have taken folkloric and cultural artifacts and resold them under their brand. I will also attempt to explain how is it that developing countries have been taught that their cultures do not have value – only to have their cultural artifacts stolen and commercialized for colonial profits. I will also explore why this is not seen as cultural appropriation and why the use of Native American artifacts is seen as appropriation.

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2 thoughts on “Conceptual Separability – Fair Trade Facts and Fashion Law

  1. I think your argument skews itself with relativity and your personal attachment to the subject. I like where want to go, but feel it's a bit foolish to have your thesis at the very end of the article. The majority of people see Romania as part of the vast hole (excuse the vernacular, but let's be frank) of Eastern Europe. So there's already the prejudice brought there by The Czech Republic and Bosnia/Herzegovina.

    You're right in the way that the original designer shouldn't be bastardized then monetized by what you refer to as “colonial” interests. But back to my original statement, you should drop your personal-sounding relationship with the country because it seems to weaken and almost prejudice your point. If I didn't know you, I would at least know you were Romanian after reading this.

    Issues like this should be ad-dressed (improper grammar fashion pun!) because countries like Romania don't have the resources to attack a citizen of another country as effectively as England, Germany, Italy, USA, et al.

    However, I do believe in free market, and somebody had the skills to find such a talent then apply that talent to their market… That, in and of itself, is a talent. If the person (exploiter) knows they can buy a product at $5 then sell it to zealots at $500, more power to them. After all, they did the footwork to find it and know their customers will pay it, so where's the foul? The original artist is getting their requested price, and the reseller is getting their suggested retail. There's really not much of a difference in this practice than our own (USA's) food business.

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  2. I am a proud Romanian but I agree with dustinjones. What would you say if a Romanian fashion designer would do the same type of designs and sell them at a similar price like Tom Ford does? you would be proud for that Romanian designer? it's a free market and everybody is free to produce anything and at any price. Who is buying that blouse at that price does pay for the brand. I am a very proud Romanian but we can't be blinded by subjectivity when we don't like something. No offence 🙂

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