ARUN RATH: Converse, the company responsible for the iconic Chuck Taylor All-Star, is suing to stop other shoemakers from copying what it says are distinctive elements of its design - the rubber toe cap, the rubber bumper and two thin, black stripes. Take a look at some of the copycat sneakers, and you'll definitely notice a resemblance, from the soles to the stitching. But in fashion, imitation isn't necessarily illegal. I spoke with NYU law professor Chris Sprigman about the open-source mentality in the fashion industry and Converse's complaint.
CHRIS SPRIGMAN: It's hard to judge these cases by intuition. The law basically says that elements of a design of a product, be it a shoe or anything else, that are functional cannot be protected by trademark law. So I've seen advertisements from the 1950s and '60s - Converse advertisements - saying that the toe bumper is functional, and it clearly is. The rubber toe cap is also functional. It protects your toes - maybe not very well, but that was the intent. So really, all you're left with is the stripe around the toe cap and the stripe running through the white rubber strip. If you look back, in the '50s and '60s, Keds shoes had those, basically, same stripes on them, and other shoes have had for decades. I think this is going to be a very steep up-hill battle.
RATH: If there's the freedom to copy these sort of functional elements, how has that affected the industry?
SPRIGMAN: If you think about how fashion gets sold, so much of it gets sold because styles change. And we've known this since Shakespeare, who said in "Much Ado About Nothing" that the fashion wears out more apparel than the man.
So how do styles change? Well, new styles appear. They become widely copied. The copying signals that a trend has taken hold. People buy into the trend because they want to be in fashion. As the copying continues, the trend dies because early adopters see that the trend has been copied too widely. They jump off. They jump on the next trend that copying is helping to set. It's the fashion cycle, and copying actually fuels it. So without copying, paradoxically, the fashion industry would be smaller and less innovative and poorer.
RATH: Do you have a real sense that Converse is actually losing money from these other brands that are taking those elements of the design?
SPRIGMAN: No, I don't. And I don't think Converse has that sense, really, either. So it's entirely possible that what's happening out there on the marketplace is all these copies or these look-alikes of the Converse All-Star are signaling to people that the Converse shoe is an icon or that it's come back into style. The Converse mark - the star mark, which, of course, the competitors can't copy - distinguishes the Converse version of the shoe from everybody else's. And because that mark has authenticity and some cachet, the invigoration of the market through the knock-offs is going to redound to the benefit of Converse.
RATH: You mention that these laws aren't intuitive, and it really seems that some of these intellectual property distinctions - they feel kind of arbitrary. It seems like things like a magic trick, recipe or a joke, a design for a pair of shoes are artistic expression. So why don't they get the same protections as film or music?
SPRIGMAN: Well, so think about what the copyright laws, the trademark laws, the patent laws are for. They are to incentivize the creation of new art, literature, science, technology. If we have an area of creativity where we don't need these property rights to incentivize production, then maybe we shouldn't have them. So fashion is a great example. We get lots of innovation, but we also get lots of competition.
If you were to apply copyright law to fashion, innovation might well slow down. Clothes might well get more expensive, and we might re-create, through copyright law, the kind of sumptuary codes that we had in the Middle Ages, and we wisely got rid of. It's not really the question whether we should have copyright just because it's expression. The question is whether copyright or trademark or patent are necessary to bring us innovation. I think the answer is sometimes yes, sometimes no. It depends on the kind of expression or innovation you're talking about.
RATH: Chris Sprigman is a professor of law and co-director of the Engelberg Center on Innovation Law and Policy at NYU. Chris, thanks very much.
SPRIGMAN: Thanks. My pleasure.
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