A Lost Story of Fashion Week

New York's Fashion Week Has Its Roots in an Early 20th Century Scheme to Crackdown on Counterfeit Designs, Professor C. Scott Hemphill Writes in a Forthcoming Book Chapter

New York, August 26, 2013— Columbia Law School Professor C. Scott Hemphill was teaching a classic antitrust case to a room full of upper-year students when he hit upon what would become the inspiration for new academic research: efforts by a group of early 20th century New York fashion designers to protect their work, which was not covered by U.S. copyright law.

In 1941, the U.S. Supreme Court rejected those efforts as violations of antitrust law. But one self-preservation strategy first employed by the designers in 1933 stuck: seasonal shows of their original work—the predecessor to modern-day New York Fashion Week.
As the Spring 2014 collections in the Mercedes-Benz Fashion Week demonstrate, style has come a long way since 1933. But—at least as it relates to fashion—copyright law hasn’t.
Some prominent designers have secured limited protection through trademark—think Gucci’s interlocking G’s and Burberry’s iconic-checkered pattern. But the designs showcased by models and sought after by fashionistas still aren’t protected. Hemphill and a co-author, Harvard Law School Professor Jeannie Suk, have detailed the history of fashion designers’ struggle in a chapter in a forthcoming book on intellectual property.
Professor C. Scott Hemphill
“It’s a lost story about early New York fashion design,” Hemphill said in a recent interview in his Jerome Greene Hall office. In January, Hemphill, returned from a yearlong stint as chief of the antitrust bureau in New York Attorney General Eric T. Schneiderman’s office. Hemphill’s research also encompasses pharmaceutical patenting and competition between branded and generic drugmakers.
The case that first piqued Hemphill’s interest in the topic can be traced back to 1932 when Maurice Rentner, one of the first U.S. garment industry executives to develop in-house designers, created the Fashion Originators’ Guild of America. As part of their membership, designers agreed to avoid doing business with retailers who sold unauthorized copies of their work. They were incredibly successful, reducing piracy of “high end” dresses in the $16.75 range by 75 percent. A frustrated Filene’s department store sued the Guild in 1936.
 The 1941 U.S. Supreme Court decision in the case, Fashion Originators’ Guild of America v. FTC, signaled the death knell for the boycott, as the justices unanimously rejected the Guild’s efforts at policing their own industry.
Because Congress had not deemed their work fit for protection, the Guild’s boycott “trenches upon the power of the national legislature,” Justice Hugo Black wrote.
As Hemphill taught the decision to his students, he found himself thinking, “The designers were getting a bad deal,” he recalled. “A lot of them were basically eking out an existence, and without protection against copyists, they had to shut down.”
The designers’ struggle became the focus of “The Fashion Originators’ Guild of America: Self-Help at the Edge of IP and Antitrust,” a chapter Hemphill and Suk wrote for Intellectual Property at the Edge: The Contested Contours of IP, a book edited by fellow Columbia Law School professor Jane C. Ginsburg and due out later this year.
For the chapter, Hemphill researched the Guild extensively, interviewing relatives of members and combing through the records of the Fashion Institute of Technology, the papers of Justice Black, and the National Archives.

One of the arguments used by supporters of the status quo, Hemphill explained, is that designers didn’t really want copyright protection: If they did really want it, they would have it.
“The Guild illustrates that designers are not ambivalent,” Hemphill said. “They were desperate. They were willing to put together the largest private IP system in the world.”
Legislative efforts to win copyright protection have fallen short over the years. U.S. Senator Charles E. Schumer (D-NY) introduced the Innovative Design Protection Act in 2012. The bill was passed out of the Senate Judiciary Committee but never enacted and has yet to be introduced in the 113th Congress.
In the meantime, the Fashion Originators’ Guild case is still good law, and Hemphill continues to teach it to his students—sometimes while wearing a Burberry tie as an educational prop.