The squint test isn’t related to having your eyes tested. It’s an idea that may protect fashion designers.

What on earth does a squint test and fashion design have to do with one another? Good question and one that has one of those kinds of “iffy” answers people love to hate. So what’s the (fashion) scoop here?

It seems the fashion knockoff trade is in high gear and rolling out very close copies of things like Michelle Obama’s inauguration gown. The culprits are Forever 21 and ABS and they’re busy making a lot of money by copying fashion designer’s originals and selling for a much lower price. It’s really easy to do these days thanks to digital cameras and the Internet.

There is usually only a lag time of a few weeks after the original debuts before copies hit the market. “I’ve actually had the opportunity to sue ABS on behalf of the fashion line Libertine. Interesting case, and it highlights what the problem is with the knockoff industry,” said David Erikson, a Los Angeles fashion law attorney.

There are other companies who get involved in rushing things to market, but they’re not strictly copying the original designer. Rather, they are creating clothes “inspired” by the original, which means they’re creating not blatant knockoffs but rather creations that are noticeably different from the original. In the US, both of these activities, the straight knockoff and inspired by designs creations, are legal.

They are legal because US copyright law says that clothing is a useful article, and as such, is not legally protected; not like movies, music and books. “However, this might be a stance heading for a revision if Diane von Furstenberg and the Council of Fashion Designers of America have anything to do with it. The idea? To treat fashion design a bit like other protected areas of intellectual property,” Erikson outlined.

Treating fashion design as intellectual property would protect original designs from copies that are substantially similar. This is the usual standard for other copyright protected creative works. Congress looked at the idea, but didn’t pass the first fashion design Bill because it lumped inspired-by and knockoff makers together.

The Bill is back with more teeth and might make it into law. The new version narrows the ban to “closely and substantially similar” designs; a very big difference from the first Bill. Fashion design law should protect originality but not limit creativity. The idea here then is to allow the inspired by designers and put a halt to the knockoffs.

Here is where the Squint Test kicks in. A proposal outlined in a recent article by C. Scott Hemphill and Jeannie Suk suggests that if a buyer has to squint to see any difference between a copy and the original, then copyright protection needs to kick in at this point. It’s the copycat designers that need to stop ripping off original designs and fooling customers they’re offering an original for less. The test is simple and elegant.

“For years, high-end designers have been pushing for something like copyright protection. The idea never flies, partly because of power and politics, and the fact that people like the price of knockoffs. If we protected fashion design the same way screen plays are protected against those who copy the play too closely, we might be outlawing too much. Chanel shouldn’t have too broad a monopoly,” indicated Erikson. Recent legislation proposed by the designers has acknowledged this by seeking more limited protection than traditional copyright.

A lot of people rather like this basic idea, although knockoff designers ABS and Forever 21 aren’t too enthused about it. The only problem with the proposal might be a practical one. “If the big design houses get anything close to copyright protection, they will push the envelope by bringing lawsuits even against the companies making ‘inspired-by’ pieces. They won’t be chasing just the big knockoff companies either. They’ll go after smaller designers who might want to rip off the latest runway pieces,” outlined David Erikson, a Los Angeles fashion law attorney.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.