Where is it ethical to be unethical?

In the Bizarro world of high fashion, apparently, where making knock-offs of famous name designer dresses is a huge industry, and the original designers get neither recognition not profit from the illicit use of their creations. The practice is obviously unfair and dishonest, but not so obviously, good for the health of the fashion industry, according to an article by law professors Kal Raustiala and Chris Sprigman on the Freakonimics website. They write:

“…To understand why, you need to think about why people buy new clothing.  At least for people with some disposable income… people buy clothes to stay in fashion, and fashion shifts when new trends emerge.  Copying is an important element of the trend-making process.  Sometimes apparel firms produce very close copies of an attractive design… but more often designers turn out apparel that is “inspired” by another designer’s work, but adds some new element that results in a garment that looks similar but not identical.  Designers have a language for this.  They produce designs that are “on trend” by “referencing” others’ work,, and they look enough alike that we recognize them as a trend. The ability of a firm … to copy a dress means that hot designs spread rapidly, and trends rise and fall. Copying helps to create trends.  It then helps to destroy them: as more and more designers hop on to a trend, the look becomes overdone, and the most fashion-forward consumers hop off.  Copying, in other words, accelerates the fashion cycle…For this reason, fashion designers’ freedom to copy does not harm the fashion industry, and indeed may be one key to the industry’s continued success.”

This can happen at all, the profs explain, because there is no way to copyright a dress design in America, and outright copying of fashion is legal. (Not the label, though: that is protected by trademark law.) Though fashion designing would seem to have most of the features of an art, U.S. law treats dresses and other apparel as “useful articles” that can neither be patented nor copyrighted. Designers have been lobbying to change this for years, but to no avail.

Ethics don’t exist in a vacuum, unlike morals. Ethical standards evolve as we recognize certain kinds of behavior as good for society, and sometimes what is good for society may not be fair to individuals.  Perhaps naively, I think a workable system could be developed that would allow original designers to get some compensation for knock-offs of their work without stifling demand or the growth of the industry, and that would be more ethically defensible. The professors are right however: if the practice of allowing firms to steal designs ends up benefitting everyone, including the designers whose designs are being copied, then there is a strong argument that the practice shouldn’t be prevented or even discouraged. If we agree that  it shouldn’t be discouraged, doesn’t that mean the practice isn’t unethical?

This isn’t as weird as it seems. Directors, choreographers and songwriters regularly see (or hear) their creations being copied, with the copiers never giving credit and making money on their thefts. So far at least, efforts to copyright staging and dance moves have been unsuccessful, and a song has to be blatant copy to trigger a successful legal action. This is also good for the arts and businesses involved. Drama, dance and music have always involved building on successful innovations by earlier artist, and even those are seldom completely original. After all, if we were strict about knock-offs in music, most of Andrew Loyd Webber’s musicals would never have made it to the Broadway stage. And where would we be without “Memories”?

Yet while I am in basic agreement with the professors’ argument, I still have a difficult time embracing unauthorized, uncredited theft of a creative product as “ethical.” Shouldn’t it be the original designer’s choice whether to accept the benefits resulting from style trends that knock-offs of his or her inspiration might generate, or to insist on getting paid for the intellectual property?