it's going to be all right. at the end of the speech he said, we shall overcome. there was hope. that said it all. >> join "american history tv" net saturday and sunday, march 7 and eighth, with live coverage from selma alabama. emma, iowa state university professor sarah mark keddie -- m arcketti talks about why fashion is not protected under copyright protection. despite popularity of the guild in the fashion industry, there was backlash and eventually the

guild face sanctions in the 1940's from the federal government for monopolistic practices. >> good afternoon. i'm very happy to see you here today. thank you for coming over to the memorial union to hear this class. today i am going to present a paper called, "knock it off: a history of design piracy in the fashion industry." this work is currently under contract with texas tech university press. we will start with some questions to think about, do we know what design piracy is? all right, with a showing of hands, how many of you have seen design piracy in magazines in television, or perhaps even on the internet? wow. a good number of you.

here is my example with "marie claire" magazine, one with rachel ray and the higher-priced and the lower-priced version next to it. have you ever experienced design piracy while shopping online or at a brick-and-mortar store? raise your hand. we have even more people. recently i was looking at amazon.com. wanting to jump on the bandwagon for a jean jacket and some jersey and the sleeve and a hoodie. i found this example from free people. here was an example, jessica simpson, $80. similar. very similar. now that we have established pretty much everyone in the room has experienced this in some way in our life, but do we know exactly what it is? so, what is design piracy?

is design piracy always the low copying the high? raise your hand if you think that. is it always the low copying the high? no. no. this example might have clue you in here. we see the galliano example from 1998 and if we look at this from 1928, it looks very similar, does it not? is design piracy the same thing as counterfeiting? raise your hand if you think yes, design piracy is the same exact thing as counterfeiting? all right, a couple of you, not really sure, not really sure. this is a bit more difficult. however the correct answer is design piracy is very different from counterfeiting. the example we see here is true religion and we see the fake example on the left and the real

example on the right. what makes this a counterfeit and not a pirated design? there is one thing that is really key here. one element that is really key. what is that? the label. right? the label. in counterfeiting, objects or -- are fraudulently branded as someone else's. the fake is trying to be passed off or pond off as the real thing. design piracy, however, is the unauthorized copying or knocking off of another manufactured or designers ideas. my final question -- my final question. is it new, 21st-century phenomenon? man, i picked some good examples.

not new. of course not. this here is pete mondrian's very famous series of paintings from the 1920's. the color blocking. and here is the yves saint -- yves saint laurent dress really a genius. it is so simple. he has taken different colors and you do not even see the seem lines. this is 2006, 2007, forever 21. designer, of course, unknown. costs less than eve some laurent -- yves saint laurent. it has this color block aesthetic. we see here from 1960 through 2010, a pretty old phenomenon. but if you know your costume history, as i know you all do, we can look all the way back to the late middle ages or the italian renaissance and see this whole notion of color blocking putting multiple colors into one

garment, was very much alive and well. the purpose we have identified right? what is it? what is it not? the purpose of today's lesson is to determine, how does fashion fall between the seams of design protection. to explore the concepts of fashion creation in the early of 20th century, and to learn from a case study in the 1930's. before we get into that, you say intellectual property protection and you're probably thinking what is that? so, what we are going to do is touch a bit on what is actually intellectual property, or ip protection. you have probably all seen this, right? have you all seen this? where do you usually see this? movies. you're watching a movie. before you get to the good stuff, this sign comes up, and

when we think about intellectual property, movies pharmaceuticals, those are the product that typically come to mind. but one only needs to think about, if it is anything your mind creates, right, that can be protected by intellectual property protection, it is important because a lot of studies have said intellectual property protection is correlated with national competitiveness, and those nations with stricter ip protection often rank in the top in the world in global growth and economic competitiveness. now we're just going to look at a couple of examples of ip protection. to get at the heart of what is it about fashion that makes it -- pun intended -- fall between the seams of design protection? copyright.

copyright is the first element of ip protection, however it generally does not apply to apparel. articles of clothing are considered useful articles. designers have tried to argue that their work is sculptural and a work of art, but it has been repeatedly said that it is to be functional. therefore it does not apply for copyright protection. if you are a quilter, you may have seen that some quilt say "copyright received." that is the pattern of the quilt. as is for jewelry design. clothing, typically, is not. the trademark. what do you think of immediately?

immediately. trademark, these symbols to identify the origins or the source of products. as soon as we see the interlocking c's, we know it has to be chanel. but we have already established something right? , pirates are not trying to steal the trademark. they are not trying to pawn themselves off as chanel or nike. they are trying to be similar to chanel. but they are never trying to confuse a consumer into thinking it is an actual chanel. this works great for counterfeit products. not so much pirated. trade dress. trade dress refers to the unique design appearance or packaging of a products. this trade dress, it means the package equals the product in the consumer's mind. so, barbie is my best example.

it as soon as you see the pink letters, the pink box, is it malibu barbie, can -- ken, is it skipper? no matter what specific barbie it is, you know -- you think yes, that is so in so. not really. not really. that is the whole notion of fashion. it's always changing. it's always different. the last category is kind of different. it is design patents, and these will provide a short-term protection for novel or non-obvious features of an invention. a lot of shoe designers use design patents and even fashion designers have used them. there are problems. they can be very costly. they can take a long time to secure. many months.

by the time you receive a design patent, someone else in the market has already scooped you. they have already introduced a similar style. furthermore, design patents are brought before judges. this is a case where they were saying it was a design patent in dispute. oftentimes the judges will say the design patent was not valid in the first place. there was nothing inventive enough or novel enough for it to even have been patented. and this leads us to think about, right, what is it about fashion? can it be original? can it be something new? the whole notion of trying to determine what is original, what is an adaptation, what is a copy is really the crux of the whole design piracy issue. this advertisement from 1919 was

created by maurice rentonor -- in these it is saying that his designs are distinctly original. what does that mean? maybe you could think about -- maybe they are saying that they are original or adapted from or inspired by these different fabrics on notions, but how would you determine if this is original or an adaptation or somewhere in between? furthermore many designers -- writers, historically and today question and contemplate , whether any design is truly original since pre-existing ideas, styles, trends are the basis, truly, for all garments. when we think about it, the great style that designers will follow is the zeitgeist, the

spirit of the time, in creating their goods. they look at history. they look at high culture. they look at politics. they look at society. they are influenced by the similar ideas. it is no wonder that similar products are created. this example is from 1922. king tut's tomb was discovered. and all of a sudden everyone from hair designers, clothing designers are inspired by ancient egypt. and you see, pretty similar, they are all inspired by ancient egypt. so, i want you to think about, just for a second here, what is it about fashion then that allows it to fall between the seams of design protection? any takers on this one? what is it about fashion that

makes it so difficult to protect? lee, what do you think? >> i think -- [indiscernible] >> grade-point. the speed of fashion makes it difficult to protect. thank you, lee. the speed of fashion. how many pairs of denim jeans do you guys have in your closet? how many? one? five? six? eight. 10. do we have to go higher? 20? you think about this. you have all of these genes -- jeans. genes you wear for school, for

class. some you wear for date night. some you have reserved for fancy occasions. some you have reserved for doing housework or garden work. they are all jeans, but they are so differentiated and there is always a new you might want to buy, right? some other things i thought about. fashion is both decorative and functional. it does not fit into the current ip protection options. we have to think about the minute incremental changes. the flare versus the boot. minute changes. and the whole notion of who gets to decide what is original, what is an adaptation, and what is a copy? and furthermore for all of this if you own a copy, if you own a trademark, you have to vigilantly sue or threaten to sue anyone who trespasses or violates your mark. so, there is an element you have to be out there aggressively protecting your product.

so, this is good. let's think about the next thing . we kind of have established what design piracy is and what it is not. the next series of slides, what we're going to do is explore -- explore the concept of fashion creation in the early 20th century, which will help to institutionalize piracy in the u.s. ready to wear a peril -- apparel industry. up to the 1950's, either women made their clothing or had a seamstress make their clothing. at the end of the 19th to the early 20th century, we see a complex series of social cultural, and technological changes that will set the stage for the rapid growth of the ready to wear apparel industry.

this is a botany class from 1890. we see more women than ever before with access and opportunity to go to college. and women are increasingly playing sports. this is one of my favorite pictures. on riverside drive, new york city. it does not look like this today. we see women participating in sports in school settings and outside. women are working more than ever before. you think about it. long working hours, increased opportunities for your leisure time, riding in an automobile, going to the movies, right? playing sports? it means you really have less time to so -- to sew. did women always have the skills

to create a well fitted, fashionably acceptable garment? no. no. enter the department store. the stores become the center for display and entertainment. william leach, a historian talks about these palaces of consumption, allowing women to see and be seen and fashionable clothing. thus, changing shopping rituals forever. advertising in retail shop displays. see this window? this does not happen too much today, does it? people gawking in the window to see what the new products are going to be. it makes high-fashion more visible. women will become more interested in new clothing and owning new clothing. by the beginning of the 20th century, ready-to-wear clothing was available in almost all marketplaces. this is a shirtwaist, we see here, from the haberdasher in

1896 and here in "good housekeeping" from 1909. this shirtwaist and observers said was the one thing every woman wears from the fat cook in the kitchen to the woman who dresses upon incomes of millions. this on politically correct -- unpolitically correct statement, of course, merely highlights how universal the shirtwaist was. everyone was wearing it. as clothing became available in these ready-to-wear establishments, they needed to be pretty simple, right? look at it, take it home, not do too much stitching or changing. the regional manufacturers also thought, we want people to keep coming back. how to they get people to keep coming back? what do they do? what do they do today to keep you coming? make something new. exactly right. so, they kept making new things.

we see a page of shirtwaist. they are all shirtwaist, but they are differentiated slightly, right? maybe there are pleats going this way or vertically or there or there are some tots -- tucks. all shirtwaists. all new. all touted as new by the apparel industry. what we see is design piracy will take hold and never let go. in new york city between 1900 and 1917, we see the number of establishments grow 350%. this rapid growth was encouraged by the need to constantly produce new styles for this actively different and diverse american consumer. the legion of u.s. designers though, are going to remain anonymous. you see here, john wanamaker. that is the store label.

we do not see a designer's name. here we have kerry collins -- the names are completely buried in the text. you cannot really see them. and furthermore, they were for the custom, higher-end apparel a nd not just the regular masses' garments. progressive era, ida tarbell has a great quote. from top to bottom we are copying. the french or viennese mode, start in on upper fifth avenue spreads to 23rd street from 23rd street to 14th street, to grant canal. each move sees it reproducing materials a little less elegant and durable, it's colors a little older eyes, -- volga rise -- vulgarized, its ornaments

cheapened, it's places poorer. a travesty, and yet, a recognizable travesty. design piracy will truly help fuel the apparel industry as style change becomes the force of the growth of the industry. styles will be copied so quickly that any popular style will be virtually immediately available at lower in lower price points. as the design was copied at lower price points, the market will become flooded with cheap imitations of goods. copies of copies of copies of copies, as ida tarbell is telling us here. in this interesting example we , see a dress and its exact copy offered in a court case, right trying to say that the manufacturer or the designer stole the idea. what we see to kind of keep up with this growth in the apparel industry is that rather than go to france right, rather than go , to france, pay the customs duties, import taxes, what

designers and manufacturers are going to do is copy one another. copy fellow americans. it is far easier to do that and go to the library to do research, to go to school get a degree in fashion design. we are just going to copy. furthermore, you will save cost on product failure or even hiring designers. manufacturers who copy one another's in a number of ways. you think about it, in the early 21st century apparel design, so you have manufacturers creating goods for multiple companies. maybe one company will go check on another and they will see someone else's product. they will say that is a , good-looking sweater or that is a good looking, you know, shirtwaist. and they will think about, ok, let's steal that idea and run with it. we also see people go to shows and sketch.

the whole notion was called scouts with camera eyes. they will go to the show under the auspices of being a buyer for their department store, but then they will sketch it out and bring it to have it produced. and we also think about people stealing, bribing, or buying goods, taking them to be produced by their manufacturer and if you can believe this, actually return them to get their original initial investment. so, we see here that piracy is set up in the industry. moving forward what happens , though, in the early 1930's -- in the 1930's, of course, one of the biggest events we think about is the great depression. we see this in harper's bazaar. 1931. then in womenswear daily it says "we are shouting value," and indeed, quantity at reasonable

prices will be very important to the 1930's consumer. the depression will see unemployment as high as 25%. clothing manufacturers will see a critical change in the shopping habits of women. so, you will start comparative shopping, right? you will evaluate across different stores which product you want at what price. although the number of dresses produced remains about the same, the cost and the quality of the dresses went down dramatically. so, same number of dresses, but the cost and the quality, way down. we also see, according to the manufacturers, the wholesale value per dress will decrease about 50% from 1927 to 1937. pretty much across the board. the higher-end manufacturers are going out of business and the lower ones are continuing to drive.

some people think that during the depression people stopped shopping, but that's not exactly what happened. people started thinking about the cost of the product and what they could afford. maybe you are typically a $17 consumer. your typical dress is $17. during the depression you start looking for an $11 dress. the $11 consumer says, this makes my budget a little tight , i will start looking at the eight dollar dress, and no one -- and so forth. but everyone can be somewhat fashionable. so basically, what happens, all of these impacts, all of these factors will cause an incredibly rich demand for inexpensive dresses. piracy will flourish. this is one of my favorite examples from "life" magazine. 1937. the duchess of windsor will wear

a $250 dress that was illustrated in the "women's wear daily ago on june 13, you see here my numbers. they will feature this european sensation for only $25. in early july, lord and taylor will feature a similar dress at about $16.95. one week later clients -- kleins will offer it for $8.97. visually, you can see this in the illustration. remember what i do tarbell -- ida tarbell was talking about? you can see how drastically the neighborhoods change, too, from the higher priced original to the lower-priced style on the right.

fashion writer elizabeth hawes , will talk about fashion and the fashion industry in her book "fashion is finished." this is her quote that talks about the yearning for new items . differentiated from the past in only the smallest detail. she says, it is the proud boast of some wholesalers that they make up a whole line with only three dress patterns. the newness so loudly called for, is new trimming, new callers come a new cuffs, new buttons, new flowers, and all of this -- not too new please. think about how we dress today. in order for a fashion to be in fashion you have to have a critical mass of adopted. -- of people adopt it. but we are never satisfied. as soon as we have one style, we start thinking, ooh, how can it

be a little different so we can continue to be at the forefront of fashion. we mentioned jeans. is there anything else we wear today that has this differentiation by just little and little bits? >> [indiscernible] >> undergarments, a great example. same basic thing, but you continue to buy based on different styles. a wonderful example. anything else? >> you have your basic riding boots, but then you have ugg boots, and studded boots and shootinges -- >> i do not know what shooties are. >> they are like ankle-length.

>> that's a great example. anybody else think of an idea? ok, jeans. can you give us an example of? >> [indiscernible] >> that's a great example. we think about the washes of j eans. mike acid wash. -- like acid wash. black denim. and color denim and all of these little things that differentiate your one basic pair of jeans. so, we can see how similar and how true this is. so in this environment, we cb -- we cb most successful attempt to end piracy.

in 1932 a group of just 12 manufacturers will come together , located in the new york city area, led by maurice rentner, to start thinking about how to increase style contras know some -- style consciousness of among women. called the fashion originators guild of america, it had the stated aim of protecting original fashion. to facilitate this, what they did was they established a design bureau to register designs by members. registration was simple. all you had to do was submit a slip of paper, the sketch of your garment. you needed to give a very brief description stating why it was unique, why it was original, and the guild would give it a serial number, stamp it with their logo, and dated to establish priority. sketches were not cross

referenced checked to ensure that they were original. and this, of course, is herbert, a noted manufacturer and a member of the foga board of directors. once registered, the designer or manufacturer would receive one of these labels. either a registered original design are registered with foga. the labels cost $.50 each, and if you can believe this, they said monthly they sold to over one million labels. think about that. that's a huge number. in a later court hearing, a judge will say these labels will come to have definite significance is indicating that the dresses were made by original designers by skilled workers. these were the divisions

covering ladies, junior miss sportswear, and also textile designers. the foga will advertise to such a degree that you could hardly turn a page of women's wear daily without seeing a promotional message or some kind of advertisement the guild promoted. in fact in march 1933, they had a 20 page issue of women's wear daily. the guild was everywhere. they started high. about $22.50. what they do then -- it's kind of interesting. what they do then, they start expanding their guardianship over piracy to include the moderate price lines. so, wholesaling, a leavened -- $11 to about $16. five months later they will extend protection to this $6.75 to $9.75 level. a month after that they extend

to the four dollar mark. the guild will argue because piracy occurs -- copies of copies of copies -- throughout the industry every branch needs protection. they do this. they offer protection through various means. they enact what is called declarations of cooperation. basically agreements between a manufacturer and a designer and a retailer that the retailer is not going to sell copied merchandise, and if they get copied merchandise, they will return it to the manufacturer. the guild will employ secret shoppers.

if a copy is found or if they retailer violates one of the other trade practices the guild has established, the guild red cards them. read carding is similar to what you might know as blacklisting. they are put on a list. that means they are not able to do business with other members of the foga. great plan, right? you think it is a good plan? is a going to work? raise your hand. i guess i already set it up because i said it was short-lived and ended. but it was a good idea. and people really buy into it. this one is a little bit hard to say, but the federal trade commission will say by 1936 the foga controls about 40% of all goods at the $6.75 to $10.75

level in 60% of those above the $10.75 level. the excerpt a huge amount of control over the industry. they have members everywhere across the united states. but some think that the entire purpose of the lower price firms is to make salable copies of higher-priced goods. lower-priced manufacturers say enough. they decide to oppose the style registration system of the guild and basically says it is monopolistic and illegal. this popular price group -- they are a group of wholesalers manufacturers, like this, the $4.75 wholesale level. they decide they will have their own declaration policy against the foga and they will not participate in this program anymore.

the guild's extended effort to put teeth in the campaign against piracy will cause watchdogs and the federal government to take notice. the foga was continually brought to court. some they one -- won. but the federal trade commission will begin a hearing on foga practices. that court will rule that while the guild policy is of suppressing piracy are ok and justifiable, the means of accomplishing it are legal. on march 19, 1941, the foga petitions to give the ruling overturned, and justice hugo black will deliver an opinion saying that the potential power to cause monopoly and coercion will bring it in violation of clayton, sherman, federal trade

commission acts, and with it the most successful attempt to end piracy ended. so, where does this leave us? right? where does this leave us? there continue to be bills submitted for design piracy protection, but i think you can probably see here why they do not work. it's very complex and not easily resolved, and it continues. this is an example from "people" magazine. on the right, kate middleton in her beautiful alexander mcqueen wedding dress. 12 hours -- 12 hours -- later, this example was ready for sale. this is far less than the six week percent of -- dissent

of the wally dress. we see this. the spread of ideas is instantaneous. furthermore the acceptance by consumers to hunt for the latest style at the cheapest price comes the method of the industry. i leave you with this great -- what i think is great -- advertisement from 1923. i think we can probably think about this in relationship to today. this company, oppenheimer collins says you may find an original here. you may buy a copy here. you may buy an adaptation here. but never a forgery of fashion. all right, guys. thank you so much. listen -- next time you meet on friday, it will be back over in laurel hall and we will be doing an artifact analysis of garments from the 20th century to try to identify which garment fits into which decade. that is friday. hope to see you then. [applause]

>> today at 2:00 eastern, we will air an oral history interview with daniel ellsberg. he became a consultant to the white house defense department. on matters concerning the vietnam war, giving him access to classified and top-secret documents. he photocopied as 7000 page study that later became known as the pentagon papers. in 1971, he gave those documents to the new york times. an interview with daniel ellsberg, here on "american history tv" today at 2:00 eastern. >> each week, "american history tv"'s real america brings you archival films that help tell the true story of the 20th century. on march 8