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Véronique Pouillard

Design Piracy in the Fashion Industries of Paris and New York in the Interwar Years

During the Great Depression, counterfeiters of the newest styles posed a challenge to the high-fashion designers who dominated Parisian design. Meanwhile, New York, tradition- ally the destination of the fi rst corporate buyers of Paris cou- ture, became a potential contender for the role of fashion cap- ital. Scrutiny of French and American laws reveals that strong national interests were at stake in the fashion business. In France, the law safeguarded copyrights of fashion design while, in the United States, legislators denied such protection to American fashion.

uxury garments and textiles are illegally copied more often than any other items in the marketplace. Seizures of all pirated goods to-

taled close to $273 million in the U.S. in 2008.1 In January of that year, more than one million dollars of copied, or “knocked off” fashion accessories were seized in Manhattan.2 Fashion products, including garments, handbags, or watches, compose a substantial share of the traffi c in international counterfeiting, because smugglers, sellers, and buyers face smaller physical and legal risks for traffi cking in these

This article was written with the support of a Harvard–Newcomen fellowship at Harvard Business School. The author would like to thank Sundeep Bisla, Reggie Blaszczyk, Florence Brachet Champsaur, Patrick Fridenson, and Daniel Levinson Wilk for allowing her to present preliminary versions of the article in workshops and for their generous comments.

1 U.S. Immigration and Custom Enforcement, www.ice.gov/pi/nr/0901/090108washington/ htm, accessed 20 May 2009. On the transatlantic fashion business, see: Regina L. Blaszczyk, “Aux couleurs franco-américaines: Quand la haute couture parisienne rencontre la confec- tion new-yorkaise,” Le Mouvement social 221 (2007): 9–32; Nancy L. Green, Ready-to-Wear and Ready-to-Work: A Century of Industry and Immigrants in Paris and in New York (Durham, N.C., 1997); Alexandra Palmer, Couture and Commerce: The Transatlantic Fash- ion Trade in the 1950s (Vancouver, 2001); Nancy Troy, Couture Culture (Cambridge, Mass., 2002).

2 Better Business Bureau, “High Fashion at Low Prices?” http://www.bbb.org/us/article/ high–fashion–at–low–prices–bbb, accessed 25 May 2009.

Véronique Pouillard / 320

goods than they would for dealing in works of art, drugs, or counter- feit money.3

Copying a fashion object can occur in two ways, sometimes simul- taneously: the design is copied or the label, or brand, is imitated. The brand is protected under commercial law, while the design is covered by patent or intellectual law. However, it is more diffi cult to enforce copyright protection for products like fashion that often only register small variations.

Between the wars, although Paris haute couture was the inter- national center of fashion creativity, it could not cater to the growing demands of the international markets because production remained local and rooted in craftsmanship. Paris couturiers therefore authorized foreign entrepreneurs to buy and reproduce their designs legally under specifi c conditions. Buyers from New York, the up-and-coming, com- peting fashion center, comprised the largest international group of Paris high-fashion clients. Paris couture enterprises, ranging from one- person businesses to fi rms like the house of Lelong that employed three thousand workers, were creating and selling exclusive designs to pri- vate clients and to entrepreneurs who selected, reproduced, and sold Paris fashions. Much of the reproduction that took place was legal, but some was not.4

From the nineteenth century on, there were frequent contacts be- tween Paris and New York designers. While the production of garments in the two cities has been the subject of historical research, the produc- ers’ policies have not been accorded the same level of scrutiny.5

Thorstein Veblen commented, in 1899, that fashion is created when garments undergo changes that, although not strictly necessary, are integral to the aspirational nature of fashion.6 Pierre Bourdieu, in La Distinction, describes how fashions trickle down from the fi rst group that adopts them.7 As soon as imitators take over a style, the fi rst group abandons it and moves on to a newer one. Fashions therefore fulfi ll a dual function: they satisfy a need for imitation while fulfi lling the de- sire for individual differentiation and change. Fashions undergo cy- cles: skirt lengths, for example, vary from one season to the next. Certain

3 Danielle Allérès, “La propriété industrielle dans l’univers du luxe,” Réseaux 88/89 (1998): 4; Stephen Mihm, A Nation of Counterfeiters: Capitalists, Con Men, and the Making of the United States (Cambridge, Mass., 2007).

4 Mary Lynn Stewart, “Copying and Copyrighting Haute Couture: Democratizing Fashion, 1900–1930s,” French Historical Studies 28, no. 1 (2005): 103–30; about the U.S., see Sara Beth Marcketti, “Design Piracy in the United States Women’s Ready-to-Wear Apparel Indus- try, 1910–1941,” PhD diss., Iowa State University, 2005, 2.

5 Troy, Couture Culture; Palmer, Couture and Commerce; Blaszczyk, “Aux couleurs franco-américaines,” 9–32.

6 Thorstein Veblen, The Theory of the Leisure Class (Boston, 1973, fi rst published 1899). 7 Pierre Bourdieu, La Distinction: Critique sociale du jugement (Paris, 1979).

Design Piracy in the Fashion Industry / 321

producers and consumers, copyists in particular, help to speed up the fashion cycles, and thus are critical to the process.8

Although the view that the French are a nation of originators while the Americans are only imitators is often repeated, I will show that each country has had its own ideas about legal protections of fashion. Even the couturiers, who create or direct the production of original designs in the form of handmade prototypes in their workshops and embody design innovation in the luxury business, are ambivalent about the issue. While Coco Chanel publicly expressed her view that piracy was a welcome sign of success, talented designers like Madeleine Vionnet and Jeanne Lanvin believed that creativity should be protected. While Vionnet and Lanvin were open to the dissemination of their designs, they wanted to be able to remain in control of their creations, for in- stance by establishing licensed manufactured lines of their clothes and perfumes.9

In this article, I explore the confl icting beliefs of two groups of fash- ion professionals during the interwar years: one group held that fash- ion design should be protected, while the other maintained that every- one should have access to fashion designs and be allowed to copy them. In France, the creation of a system protective of fashion designs was founded on the principle that fashion was a branch of high art, whereas, in the U.S., fashion was perceived in functional terms, and thus its de- signs were not protected. Under French law, fashion creators were held in the same high regard reserved for artists, while American law as- signed them a lower status. I explore these confl icting views of fashion design by examining associations of fashion professionals: the Cham- bre syndicale de la couture parisienne and the Protection artistique des industries saisonnières in Paris; the Fashion Originators’ Guild of Amer- ica; and major fashion entrepreneurs, like Coco Chanel and Madeleine Vionnet in Paris, and the New York designers and manufacturers Mau- rice Rentner and Elizabeth Hawes.

The issue of creativity impelled fashion entrepreneurs to federate. The French association Protection artistique des industries saison- nières, founded by Vionnet and her lawyer, Armand Trouyet, sued every copier they could fi nd. In New York, the Fashion Originators’ Guild of America, founded by Rentner and his lawyer Sylvan Gotshal, gathered together enterprises that agreed to label the products they sold and to check the origin of the designs they retailed. These associations shared similar goals on both sides of the Atlantic, and they collaborated from the late 1930s on.

8 Roland Barthes, Système de la mode (Paris, 1967), 332. 9 Geoffrey Jones, Beauty Imagined: A History of the Global Beauty Industry (Oxford,

2010).

Véronique Pouillard / 322

Parisian Haute Couture

Fashion ties business and art together. Ever since Charles Freder- ick Worth established what is considered to have been the fi rst haute- couture house in Paris in 1857, French couturiers have been considered artists, which enabled them to market their designs as their own exclu- sive property. Several factors contributed to the development of the fashion industry in Paris. Skilled craftspeople, relying on ancient tradi- tions, offered exceptional technical possibilities to fashion designers. High-quality museums, art exhibitions, and a fascinating city landscape were acknowledged inspirations. The proximity of the royal court, and later of socialites’ and artists’ circles, created sustained demand. Tour- ism benefi ted from the attraction created by fashions, and the visitors to the city provided an international clientele. During various periods, the support of both national and city governments, in the form of tax cuts on luxury products, for example, helped to boost the fortunes of an industry that was considered essential to the nation’s wealth.

The reign of Paris over both national and international high-fashion markets lasted from the mid-nineteenth century to the middle of the twentieth. After World War I, the city’s fashion sector continued to be structured as a craft industry that mainly consisted of small and medium-sized limited-liability companies. “Everything [was] arranged for couturiers to work in Paris,” observed an American fashion designer in the early 1930s.10 At that time, American experts also noticed that the fashion and textile industries, then employing nearly half a million peo- ple in France, depended on the leading fashion designers. At the top of the fashion hierarchy were the designers, supported by the premières, experienced seamstresses who directed the workshops that were spe- cialized according to type of garment: fl ou (for dresses), tailoring, coats, millinery. Most of the workforce was female, although some skills, like tailoring and fur cutting and sewing, were dominated by men. The workers were organized according to a strict hierarchy based on experi- ence and skills: premières were at the top, apprentices occupied the bottom rung, and the pay matched their places on the professional lad- der. A few dozen couture houses were aesthetic leaders and innovators, not only in Paris but also abroad. Their dominance, often described in the international media as the dictature of fashion, did not face much international resistance.11 Fashion had acquired a powerful place in consumers’ imaginations and, by offering a range of possibilities for representations of the self, had become a means of self-empowerment.12

10 Elizabeth Hawes, Fashion is Spinach (New York, 1938), 16. 11 “The Dressmakers of France,” Fortune, Aug. 1932, 17. 12 Gilles Lipovetsky, L’empire de l’éphémère: La mode et son destin dans les sociétés

modernes (Paris, 1987).

Design Piracy in the Fashion Industry / 323

As higher-end couturiers in Paris claimed worldwide superiority on the basis of their exquisite craftsmanship and cosmopolitanism, the city be- came a magnet for foreign dressmakers.13

Paris haute couture had built global fame while remaining quintes- sentially local. The top stratum of private clients traveled to Paris throughout each year to order custom-made clothing. Fashion shows, a practice that started after 1910, were organized in Paris for the press and the buyers four times a year: the two major ones took place in Au- gust and February, and two smaller midseason shows were held in Oc- tober and April. The winter collection, shown in August, was the most important, and it marked the start of the year’s fashion “revolutions.”14 Fashion professionals and press from around the world traveled to Paris, drawn by the aesthetic attraction of the city’s shows. Corporate buyers purchased haute-couture garments, along with the right to re- produce them. A French salesperson was required to open an account for the foreign buyer, whose card was not transferable. The purchases had to be paid for through a French bank, and the buyer had to give the couture house a certifi cate proving that the merchandise was intended for resale outside France.15 Foreign buyers worked most often through a commissionaire, an agent who ensured the purchaser’s representa- tion in Paris, introduced her to suppliers, and oversaw the shipment and insurance of wares.16

Beginning in the late 1920s, haute-couture designs were increasingly transmitted to foreign retailers and clothing manufacturers through sales of paper or fabric patterns (toiles). Foreign retailers had to obtain buyers’ cards from the employers’ syndicate, Chambre syndicale de la couture parisienne, when paying an advance on a purchase, sometimes called “viewing rights” (droit de vision), in order to gain entrée to the shows’ openings.17

According to one American observer, the price of a legal, or even of an illegal, garment copy of very good quality could be calculated in this

13 “L’infl uence parisienne,” International Textiles 2 (28 Nov. 1934): 21, Victoria & Albert Museum, Archives of Art & Design (hereafter AAD); “Le but de l’Offi ciel de la Couture et de la Mode de Paris,” L’Offi ciel de la couture et de la mode de Paris: Organe de propagande et d’expansion de l’art français 4 (Mar. 1924): 1.

14 Fashion Forecast Conferences, Proceedings, Rockefeller Center, 6, Sept. 1933, 3, box 72, folder 10, New York Public Library, Fashion Group International Archive (hereafter FGIA).

15 Im-ex. la grande revue belge pour le développement et l’expansion des industries du vêtement (Brussels, Feb. 1926), 19.

16 Willy Devos, “L’Utilité de l’intervention du commissionnaire pour l’acheteur étranger,” Im-ex. La grande revue belge, 28.

17 Didier Grumbach, Histoires de la mode (Paris, 1993), 61–62; Georgette Deschamps, La Crise dans les Industries du Vêtement et de la Mode à Paris pendant la période de 1930 à 1937 (Paris, 1937), 51.

Véronique Pouillard / 324

way: “The exactitude . . . varies with the price, which varies with the amount of perfection any given copy house sees fi t to attain. A really per- fect copy of a model costs in a copy-house just about a half what it costs in the place where it was born.”18 In the mid-1930s, exact reproductions of one seasonal line of thirty to seventy-fi ve designs by New York manu- facturers on Seventh Avenue cost an estimated $30,000 to $50,000 (around half-a-million dollars in today’s prices).19 The one-time repro- duction fee cost a corporate buyer an estimated 30 percent to 40 per- cent of the price of one original haute-couture garment in Paris. There was no system of royalties for reproducing haute-couture fashions.20

Couture houses generally adopted practices of secrecy that induced them not to reveal their sales. Until the early 1930s, only 25 percent of their business on average was with corporate buyers, who paid in cash, unlike the private buyers who were generally slow to pay. It was consid- ered improper to urge prestigious clients to pay their bills, and they often paid late, either as a way of signaling their prestige or as a conse- quence of dwindling fortunes.21 Prominent textile manufacturers, like Rodier or Bianchini-Férier, provided couturiers with a form of credit by furnishing small quantities of fabrics in advance of payment and then waiting to see what would sell in a collection, before supplying more fabrics. Most fi rms continued to advance fabric to established couture houses in the event of a few bad seasons. Such loans were rewarded by the couturiers’ showcasing of the textiles.22

The Development of Copying in Paris

In addition to the system of buying and legally reproducing fash- ions, the American designer Elizabeth Hawes remembered a “general atmosphere of bootlegging” in 1920s Paris couture that was not entirely new.23 Paris couturiers acknowledged that copying started at home, since not only did the copyists have to operate close to their sources, but the operations also required the sort of capable workforce that was available in the city.24 In 1929, Lucien Klotz, secretary general of the

18 Hawes, Fashion is Spinach, 38. 19 “FOGA et al., Sue Lucille Baldwin Here,” Women’s Wear Daily (hereafter WWD),

14 Oct. 1936, sec. 1, 1, 35. For currency conversions, see www.measuringworth.com/. 20 Véronique Pouillard, “In the Shadow of Paris? French Haute Couture and Belgian

Fashion between the Wars,” in Producing Fashion: Commerce, Culture, and Consumers, ed. Regina Lee Blaszczyk (Philadelphia, 2007), 62–81.

21 Werner Sombart, Luxus und Kapitalismus (Munich, 1922). 22 “The Dressmakers of France,” Fortune, Aug. 1932, 76, 78. 23 Hawes, Fashion is Spinach, 46; on the copying practices prior to the time frame of this

article, see Troy, Couture Culture. 24 Philippe Simon, La Haute Couture: Monographie d’une industrie de luxe (Paris, 1931),

142.

Design Piracy in the Fashion Industry / 325

Society of Authors and Artists’ Rights, estimated the number of copy houses in Paris at more than one hundred.25 Since copying was an ille- gal activity, all transactions were made in cash. Copy houses therefore had an advantage over haute-couture establishments, which had to ex- tend credit to their private clients over periods of months.26 Copy houses generally maintained a double set of books.27 They were careful to keep the copied items in their commercial venues for the shortest time possible, choosing instead to take the copied garments home, where seizures were not authorized, or to friends. In order to deceive the po- lice and prevent raids, copyists visited clients, and they did not hold fi t- ting appointments at fi xed hours.28

Haute-couture garments could be copied at every stage: through the workers, the intermediaries, and the clients themselves. The work- ers and models of haute-couture houses were often accused of using their proximity to the designers to earn additional money. In 1931, they could receive on average 50 to 100 French francs (the equivalent of 2009 US$150 to $300) for sneaking a new design out of the originator’s house. Another option was to hire haute-couture workers for after-hours work in copy houses that involved replicating the pieces they had been sewing during the day.29

International corporate buyers, on their end, simply joined forces: instead of each one buying twelve dresses, they would pool their re- sources among three or four buyers. What seemed a way for them to share investment costs was considered fraud by the Paris houses, al- though it was diffi cult to build legal cases to prevent and punish such practices. An increasing number of couturiers demanded that the buy- ers, who did not pay royalties for reproducing purchased designs, order a minimum number of garments upon admission. Buyers failing to meet this requirement could be blacklisted and refused entry to future openings. Surveillance and jurisprudence constantly forced the copyists to refi ne their methods. In the 1920s, copyists increasingly worked from toiles, the raw-linen couture prototypes that were not well protected by the law in the early 1930s.30 Copying toiles was even easier than copy- ing dresses: no workshop or salon was needed—only a room and a travel- ing salesman were required. Smugglers cultivated an extended network of foreign correspondents, selling them toiles, sketches, and references

25 Bertram J. Perkins, “Klotz Deplores Ineffi ciency of French Style Piracy Laws,” WWD, 22 May 1929, sec. 1, 1.

26 Véronique Pouillard, Hirsch & Cie Bruxelles, 1869–1962 (Brussels, 2000), 33. 27 Hawes, Fashion is Spinach, 40. 28 Simon, La Haute Couture, 156–57. 29 Georges Le Fèvre, Au secours de la couture (industrie française) (Paris, 1929), 103–11. 30 Simon, La Haute Couture, 146.

Véronique Pouillard / 326

(sheets of information on the cut, fabric, buttons, and other materials needed to copy a garment) for amounts ranging from 100 to 200 French francs (2009 US$300 to $600).31

Private clients were also suspected of helping copyists. One tactic used by foreign buyers was to lend garments they had just purchased for the period between delivery in Paris and the arrival of the dress at the purchaser’s fi nal destination. Stories were told of clients lending their new high-fashion dresses to copyists in order to earn back some of the money they had spent on their wardrobes. Another account re- ported that the mistress of the director of a famous couture house al- lowed her dresses to be copied for a fee.32

In the late 1920s, the French couture industries lost an estimated fi ve hundred million French francs to copying, equal to one billion of today’s dollars, according to journalist George Le Fèvre.33 The French lawyer Armand Trouyet proposed that haute-couture houses seek dam- ages, which they would calculate by multiplying the number of counter- feited labels by the average price of the garments produced under those labels.34

After World War I, haute-couture houses were able to apply juris- prudence built upon a 1793 intellectual property law to expand prose- cution of the theft of original clothing models. The Institut national copyrighted designs, which it recorded, along with a reference number and the hour and date of the design’s deposit, in order to establish pre- cedence. If a couturier suspected the theft of a design, he or she would notify the police, who would send an offi cer to visit the suspected copy- ist’s home in order to seize dresses, toiles, or sketches, which were then sealed and transmitted to the clerk’s offi ce of the tribunal.35 The fi rst fi nding of intentional infringement was punished by a fi ne; the second could add a prison term of from one to six months. Nevertheless, illegal copying persisted in both domestic and foreign markets.36

Supplying Unauthorized Copies to the American Market

International fashions were based on clusters of enterprises in both France and the United States fi nanced largely by domestic capital. Be- yond this local structure, the fashion business, from its Parisian core to

31 Ibid., 145. 32 Hawes, Fashion is Spinach, 45. 33 Le Fèvre, Au secours de la couture, 93. 34 William P. Carney, “Paris Plans Curb on Bootleg Styles,” New York Times (hereafter

NYT ), 8 Nov. 1931, E4. 35 Simon, La Haute Couture, 153–57. 36 Ibid., 134.

Design Piracy in the Fashion Industry / 327

its importers and planned new centers, drew strength from transnational sources. In 1931, the American businessman Paul Bonner reminded his fellow New Yorkers that Paris couturiers had built their dominant posi- tion on an ability to understand and anticipate the desires and needs of an international clientele a couple of years in advance.37 Both inter- national and local experts built their expertise as intermediaries, which some, mainly Americans, labeled “fashion forecasting.”

The Paris fashion business early on developed commercial relations with the United States, the home of most of the foreign buyers. By the 1930s, 80 percent of the American fashion business operated in New York’s garment district. Beginning in the nineteenth century, French textile and fashion companies opened foreign offi ces to facilitate ex- porting to the United States and other countries.38

Entrepreneurs who wanted to obtain unauthorized copies of Paris- couture creations usually hired sketchers, described by the American entrepreneur Andrew Goodman in this way: “the copyist, the schemer, the sharp guy who sends his designers to showings with sharpened pencils . . . run out to the men’s room and quickly make sketches.”39 Sketchers were helped by the postal services, the cable, and the tele- phone, cutting not only into the creators’ businesses, but also into the earnings of more traditional intermediaries, like the commissionaires, whose potential clients “were quite satisfi ed with their present connec- tions in Paris just so long as they continued to send sketches of new models at $1 per sketch.”40 Sketching at the Paris fashion openings was forbidden, but Women’s Wear Daily noted “the diffi culties . . . encoun- tered in enforcing the existing French laws.”41 Lawsuits failed to dis- courage the copyists. Article twenty-fi ve of the French code of criminal procedure stipulated fi nes ranging from ten to two thousand francs (equivalent to 2009 US$20 to $4,500), plus payments for the damages that were eventually awarded to the victim.42 Copyists condemned for repeat offenses often managed to pursue their activity by obtaining the protection of infl uential clients.43

In Fashion is Spinach, an account of her career that became a best seller in the U.S. in 1938, American fashion professional Elizabeth Hawes

37 Intervention at the Fashion Group by Paul Bonner, 6 May 1931, box 72, folder 3, FGIA. 38 Union Centrale des Arts Décoratifs, Commerce de la France (Paris, 1926), 101. 39 Transcript of Andrew Goodman interview about the Uptown Retail Guild, 2, reference

x–20, Gladys Marcus Library, Fashion Institute of Technology (FIT) special collections, New York.

40 Bertram J. Perkins, “New York Trip Disappoints Commissionaire,” WWD, 24 May 1929, sec. 1, 4.

41 “Paris Papers Warn of Copying Penalties,” WWD, 25 Apr. 1929, sec. 1, 14. 42 Simon, La Haute Couture, 46. 43 Hawes, Fashion is Spinach, 47.

Véronique Pouillard / 328

recalled her working days in a Paris copy house. Despite her avowal that fashion was not as vital as its participants claimed (just as spinach “doesn’t cook up to much”), Hawes managed to build a long career in the fashion business. She studied at the Parsons School of Design in New York and then at Vassar College, from which she graduated in 1925. She did a brief unpaid apprenticeship at Bergdorf Goodman be- fore leaving for Paris in July 1925. There she worked in a copy house until the spring of 1926, sketching for American buyers.44 She became a sketcher in order to complete her design education in Paris. In couture houses, she was introduced either as a private customer or as the assis- tant of a foreign buyer. As a sketcher working for a clandestine Paris copy house, Hawes earned 500 French francs a month, the equivalent of about $20.45 She combined the job with freelancing for a New York copy house that paid her $1.50 per sketch. Hawes was able to draw some fi fteen accurate sketches from memory after each presentation, producing a total of three hundred sketches in one season. She also du- plicated her sketches for a few other buyers who did not have their own teams. Her earnings totaled between $500 and $1,000 a season (the equivalent of 2009 US$29,700 to $59,300, using the GDP indicator), and she could live in “comparative luxury” on $100 a month in mid- 1920s Paris.46 Hawes wrote that she was conscious at the time of being a thief, and she got into trouble in several houses. She worked as a fash- ion correspondent for American fi rms, legally designed and sketched for Macy’s and Lord & Taylor, and started writing as a fashion corre- spondent for the New Yorker under the pen name “Parisite.”47

Model renters (loueurs de modèles) bought couture garments, toiles, or patterns in Paris and then rented them out for copying. Some Ameri- can buyers rented garments by the hour for other manufacturers to copy. The price to rent a garment decreased with the age of the design. While Paris couturiers forbade renters to attend their shows, they found it diffi cult to enforce the ban. One attempt consisted of placing invisible signs inside the dress. Haute-couture designs imported by U.S. fi rms that reproduced designs legally were exempted from paying a tariff, on the condition that they remain with the importer for a defi ned period, generally one year. Once the dress was copied, it was usually resold to a Latin American or Canadian fi rm.48 Renters often made arrangements

44 Elizabeth Hawes, vita, Box 1, 1, reference x–149, Gladys Marcus Library, FIT Special Collections.

45 Hawes, Fashion is Spinach, 40. 46 Ibid., 53. 47 Guillaume Garnier, “Le milieu de la mode,” in Paris-Couture: Années trente, ed. Guil-

laume Garnier (Paris, 1987), 123. 48 Palmer, Couture and Commerce.

Design Piracy in the Fashion Industry / 329

with intermediaries, in violation of the U.S. tariff law. The invisible signs placed in the dresses enabled designers to fi nd the intermediaries who had bought haute-couture pieces in Paris with fraudulent inten- tions. Another strategy was to mark the dresses inside clearly with in- delible ink to discourage attempts to pass them along for copying.49

Developing French–American cooperation to block renters in the United States proved to be diffi cult.50 For example, in 1936, the most famous American design renter of the time, Elsie Cobin, was found in possession of nine original pieces produced by the Parisian couturier Robert Piguet. Yet Piguet was the one who had to justify himself.51 Rent- ers like Elsie Cobin openly showed collections in New York.

Can Fashion Creativity be Protected?

French law offered three types of protection: patents for inventions, patents for designs, and copyrights of designs and brands, as well as trademark protection. Copyright was the preferred method for protect- ing French designs, although this system did not deter French, Euro- pean, and American copyists from plagiarizing Parisian aesthetic inno- vations. Nevertheless, French law still offered the best protection.

American law offered a different type of protection for fashion. U.S. copyright law was designed to protect artistic productions. During the nineteenth and early twentieth centuries, the defi nition of art in copyright law had gradually expanded, either by defi nition or through judicial interpretation. Between the wars, copyright infringement was subject to penalty, not only for high art, but also for popular songs, phonograph records, radio broadcasts, advertisements, designs for works of art, photographs, and motion pictures.52 Advertising designs were protected as a major form of communication in the emerging mass- consumption society. Brands and logos were protected by trademark law, but fashion was not covered by American copyright law. Therefore, the only option for protecting a fashion design was to take out a patent, which, in the U.S., covered not only technical innovation but also de- sign. Obtaining a patent, however, was too slow and expensive, and the procedure was unable to keep pace with the seasonal rhythm of fashion changes.

49 Fr. Marle, “Lettre de Paris: La Resquille dans la Haute Couture Parisienne,” Textilis 9 (1 June 1937): 9.

50 Committee Meeting Records (hereafter CMR), 9 Dec. 1939, Lucien Lelong, Archives of the Chambre Syndicale de la Couture Parisienne (hereafter CSCP).

51 “Piguet Divulges Names of Firms to Which Early Model Shipments Went,” WWD, 1 Sept. 1936, sec. 1, 1.

52 Sylvan Gotshal, The Pirates Will Get You: A Story of the Fight for Design Protection (New York, 1945), 7.

Véronique Pouillard / 330

During the interwar period, various groups, most critically the Fash- ion Originators’ Guild of America, attempted to enlarge the scope of American copyright protection to include fashion designs, an initiative that coincided with the increasing self-confi dence of American design- ers. The argument for instituting design protection in the U.S. was two- fold. First, high-end American retailers wanted to protect Paris fashion, as they intended to continue playing the role of intermediaries. They prided themselves on bringing the fi nest designs to American markets. Second, a growing number of American fashion professionals were ad- vocating the development of original American fashions, which were threatened by cheap copies of Paris designs. Protecting Paris designs paradoxically would diminish the cultural hegemony of Paris fashions.

Thus, an important sector of the American industry opposed pla- giarism strictly on the grounds of its negative effect on the American fashion business. American buyers who legally purchased Paris cou- ture, and had the right to reproduce it, were making seasonal invest- ments, taking a risk in their creative choices, selecting what they con- sidered the appropriate designs for the American market, and importing them at high cost. The risk to them resided in the public’s unpredictable response. Lower-priced manufacturers illegally copying designs im- ported from Paris cut off follow-up orders to the higher-end manufac- turers, causing them to lose a substantial part of their investment. When a woman accustomed to buying clothes in the higher-end seg- ment saw cheap copies of her dresses in the stores, she would reject those styles. But copying was also the symptom of a fast-growing econ- omy and booming demand across the market, factors to which higher- end couture houses and manufacturers, whether French or American, were ill equipped to respond.53

Fashion and the Law in the United States

Just before World War I, Thorvald Stolberg, the American register of copyrights, had expressed the opinion that the U.S. should adopt laws similar to those of France. Members of Congress then proposed successive revisions of the American copyright law that would include fashion, but they faced resistance from other members, who argued that the practicality of American-made garments made them distinct from works of art. During the mid-1920s, these disparate views culminated in congressional debate on the Vestal bill.

The goal of this bill, submitted by Representative Albert H. Vestal of Indiana, who chaired the Congressional Committee on Patents from

53 Geoffrey Jones and David Kiron, “Cisco Goes to China: Routing an Emerging Econ- omy,” Harvard Business School case 805–020 (July 2004).

Design Piracy in the Fashion Industry / 331

1925 to 1929, was to establish a quick and inexpensive method of regis- tering designs. Its opponents were mainly department-store members of the National Retail Dry Goods Association (NRDGA), who feared that copyright owners would be able to exert pressure on retail prices, thereby concentrating power in the hands of a small number of Paris designers.54 The bill underwent several rounds of discussion, during which one side argued for legislation to protect design originality and the other expressed retailers’ fear of loss of control.55 Another argument against copyright protection was based on the view of America as a fashion democracy.56 Representatives asserted that the Vestal bill was “designed to take away from the poor working girl the right to wear the same pattern of goods that the wealthy people do.”57 Fashion copyright was thus perceived as subverting the American ideal of social mobility.

Conversely, advocates for copyright protection argued that it would provide employment for designers; encourage manufacturers to produce in larger series, and therefore at cheaper prices, even if they used original designs; and improve the conditions of competition in manufacturing— while claiming that protection would not undermine competition be- tween fashion lines. The Vestal bill passed the House in 1930 and went on to the Senate, but Congress adjourned the next day. The bill was dis- cussed again in a Senate committee the following year, but the wide range of products it covered became a source of concern, leading to a further—and permanent—delay in voting the bill into law.58

Americans, like attorney Sylvan Gotshal, who tried to extend appli- cation of the American copyright law to fashion, encountered a major obstacle when advocating that fashion should be considered equal to other arts.59 This assertion was easily dismissed on the grounds that the cyclical nature of fashion indicated a lack of true invention.60 Fashion was viewed as a form of perpetual recycling of a limited number of de- signs, which were themselves limited by the functional requirements of the body’s shape.

Fashion and the Law in France

French law did not distinguish between fi ne and applied art.61 Therefore, in the French legal view, a fashionable garment and a painting

54 Gotshal, The Pirates, 31–32. 55 “Hearings on Vestal Bill,” NYT, 14 Dec. 1930. 56 Jessica Daves, Ready-Made Miracle: The American Story of Fashion for the Millions

(New York, 1967), 10. 57 Gotshal, The Pirates, 37. 58 Ibid., 38–41. 59 Ibid., 7–8. 60 Ulrich Lehmann, Tigersprung: Fashion in Modernity (Cambridge, Mass., 2001). 61 Simon, La Haute Couture, 166.

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were both art.62 The practices of renting dress models and copying origi- nal designs and toiles became progressively illegal. The Chambre syndi- cale de la couture et de la confection pour dames et fi llettes, a trade asso- ciation created in Paris in 1868, monitored three commercial activities in women’s fashion: dressmaking, tailoring, and “confection” (ready-made garments).63 In 1911, the organization became the Chambre syndicale de la couture Parisienne (hereafter Chambre syndicale), whose pur- pose was to guard only the interests of the high-end dressmaking pro- fession.64 As an employers’ syndicate, it included directors of haute- couture houses in Paris, like Jeanne Lanvin, Jean Patou, Jacques Worth, Lucien Lelong, and Madeleine Vionnet. Provincials were not accepted, and confectioners were no longer allowed to be members. Some leading fi gures of Paris couture, like Marcel Rochas and Coco Chanel, chose to remain outside the Chambre syndicale.65

The Chambre syndicale developed exclusivity policies in an at- tempt to retain some control over the reproduction of fashion design. The association adopted a rule that allowed only foreign manufacturers to reproduce couture garments.66 The Paris couturiers strictly denied reproduction rights to French manufacturers outside the capital. French provincial manufacturers could neither attend the openings nor buy couture designs to reproduce legally. French manufacturers, dissatis- fi ed with this situation, repeatedly lobbied the Chambre syndicale for the right to reproduce haute couture based on the same qualifi cations that were imposed on foreign buyers, but they did not persuade the Chambre syndicale to change its policies during the interwar period.67

The Chambre syndicale also tried to make its voice heard regarding the protection of design in the United States. Jacques Worth, a third- generation member of the house of Worth who eventually became pres- ident of the Chambre syndicale, had strong connections to the Ameri- can market. Highly respected by his Paris peers, he was active at the Customs Commission (Commission des douanes), and he traveled fre- quently to the United States, where he often addressed professional meetings.68 After Worth went to New York to discuss the piracy issue

62 Bernard Edelman and Nathalie Heinich, L’art en confl its (Paris, 2002). 63 Garnier, “Le milieu de la mode,” 75. 64 On the Chambre Syndicale, see Grumbach, Histoires. On Vionnet, see Betty Kirke,

Madeleine Vionnet (San Francisco, 1998); Pamela Golbin, Madeleine Vionnet: Puriste de la mode (Paris, 2009); and Florence Brachet Champsaur, “Aux Galeries Lafayette and the Couture Industry, 1890–1952,” paper presented at the joint BHC-EBHA conference, Milan, 12 June 2009.

65 CMR, 30 May 1933, 1, CSCP. 66 Deschamps, La Crise dans les Industries du Vêtement. 67 “Accord entre la haute couture et la confection,” CMR, 4 July 1930, 5–6 and 22 Jan.

1932, CSCP. 68 General Assembly Records, 7 May 1930, 3, CSCP.

Design Piracy in the Fashion Industry / 333

with American buyers, the French couturiers and Americans buyers discussed the possibility of founding a joint association, but all negotia- tions stopped after the stock market crashed in October 1929.69

The couturiere Madeleine Vionnet was infl uential in federating her Paris peers as a way to protect fashion design. Vionnet had founded her own couture house in Paris in 1912. Celebrated for her use of the bias cut and lightweight fabrics, Vionnet had launched her career by copying models for a London shop.70 Historian Betty Kirke notes that Vionnet’s awareness of copyists started while she was working at the house of Cal- lot Soeurs under the direction of Madame Gerber-Callot.71 Vionnet was inspired by the commercial strategies of Callot Soeurs, whose directors took every opportunity to sue counterfeiters. Nancy Troy has explored Vionnet’s attempts to build an early system of licensing her product and collecting royalties, especially in the American market; nevertheless, her creations were widely copied in the United States.72 Vionnet’s de- signs were not only represented in higher-end Manhattan department stores; they also trickled down fast and far. In 1931, the trade press was writing about Vionnet’s “black skirt and bright green jacket which was to usher in the vogue of the contrast coat now spread to prairie towns and the smallest city dressmakers.”73 Both the fashion and trade press advertised illegal Vionnet copies or imitations in every price range. Vi- onnet modifi ed models at very short notice before openings, and she in- stalled dyeing facilities inside her house that enabled her to change the colors of the clothes she was planning to model on a whim, taking the copyists by surprise. Vionnet successfully sued copyists who were sell- ing illegal reproductions of her dresses to Bergdorf Goodman, Saks- Fifth Avenue, and the pattern fi rm Butterick, the oldest such company on the market.74

In 1921, Vionnet and the general director of her fi rm, the lawyer Louis Dangel, founded the Association pour la protection des arts plas- tiques et appliqués (Association for the Protection of Visual and Applied Arts).75 The Association brought together creators of all types of applied arts to fi ght copyists. They pooled their fi nancial resources, advertised their activities in press campaigns, and documented their cases. The Association worked outside consular jurisdiction by appearing before

69 Simon, La Haute Couture, 161–63. 70 Paul Johnson, Creators: From Chaucer and Dürer to Picasso and Disney (New York,

2006), 227; Stewart, “Copying and Copyrighting Haute Couture,” 112, 128. 71 “Couturiers Who Count,” WWD, 26 June 1931, sec. 1, 4. 72 Troy, Couture Culture. 73 “Couturiers Who Count,” WWD, June 26, 1931, s. 1, p. 4. 74 Ibid. 75 Grumbach, Histoires, 27; Simon, La Haute Couture, 153.

Véronique Pouillard / 334

the magistrate, a procedure they intentionally chose in order to equate copying with theft. The Association proceeded by seizing counterfeited designs and garments. Its actions were decisive in building jurispru- dence that conferred the status of art on haute couture, and it advocated the establishment of international copyright laws.

In 1930, Vionnet and Armand Trouyet, the lawyer who by then had replaced Dangel, founded the Protection artistique des industries saisonnières (hereafter PAIS), which played a key role in protecting fashion design. Trouyet was president of PAIS from its inception. The purpose of the new association was not fundamentally different from that of previous groups, but PAIS became more infl uential and came to be considered by some members of the Chambre syndicale as a parallel organization. During the 1930s, PAIS was mostly engaged in repressing illegal copying of fashion designs. Proceedings were started by the de- signers themselves, and in some cases the Paris professional associa- tions acted as plaintiffs. Cases could be settled either through amicable agreements or by lawsuits. PAIS effectively reinforced case law in favor of the creators and, as a preventive policy, blacklisted buyers who oper- ated outside the law. Despite Vionnet’s best efforts, the copyists man- aged to sneak into every house, often backed by international buyers.

On occasion, various French professional associations would col- laborate in the fi ght against copying. For example, the Chambre syndi- cale, PAIS, and the Association pour la défense des arts plastiques joined forces with the couture and millinery houses of Lewis, Caroline Reboux, Agnès-Drécoll, Louiseboulanger, Patou, Jenny, Suzanne Tal- bot, Vionnet, and Schiaparelli, to wage a battle against the house of Lebrun, a Parisian enterprise that sold false labels manufactured by the fi rm of Faure & Cie in Saint-Etienne.76 In that case, counterfeit la- bels were affi xed to cheap copies of haute-couture designs. In covering the affair, the American press acknowledged that a part of the counter- feit merchandise was probably intended for the U.S. market. Daniel Reagan, commercial attaché to the American embassy in Paris, admit- ted to Armand Trouyet, director of PAIS, “It is possible, of course, that these style bootleggers had agents in the United States to whom they sent faked models, afterward sending forged labels and trade-marks separately.”77

In a few cases, Chambre syndicale members themselves failed to abide by the industry rules.78 For example, in 1930, Trouyet found out that the house of Alice Choquet, member of the Chambre syndicale, had

76 CMR, 27 Oct. 1931, 2, CSCP. 77 William P. Carney, “Paris Plans Curb on Bootleg Styles,” NYT, 8 Nov. 1931, E4. 78 Madeleine Chapsal, La chair de la robe (Paris, 1991), 213.

Design Piracy in the Fashion Industry / 335

been convicted for the seventh time of copying designs, most recently from the house of Vionnet.79 Trouyet used an agent to prove the facts, and the case was settled out of court. The offending house paid a fi ne that went to the welfare fund of the Chambre syndicale, and Choquet was allowed to remain in the association.80

Among all the fashion designers of the interwar years, the two that stood out as stars were Vionnet and Coco Chanel. They were polar op- posites, both in their business models and in how they exercised their creativity. Vionnet considered the fi ght against piracy a just cause, and she worked hard to convince her peers to join in the battle to defeat it. But she failed to persuade Chanel, who developed her own methods of combating design piracy. Buyers attending Chanel’s fashion shows were under stricter surveillance than they were at any others.81 Chanel did not hesitate to sue counterfeiters, and she did so on several occasions. But she refused to join Parisian fashion associations, and she publicly acknowledged that copying was the highest form of fl attery. In her Amer- ican perfume advertisings, Chanel advertised herself as the “most cop- ied and popular couturiere, ardent sponsor of Youth.”82 The addition of her own fabrics to her line of original garments strengthened Chanel’s position on copying.83 Since her dresses were more likely to be copied in Chanel fabrics, she was able to retain some of the benefi ts she lost to copying through sales of the material.84 Chanel’s modern take on repro- duction, combined with her “Ford Model T dress,” the little black dress that was the fashion counterpart of the basic Ford car, and her use of tie-in products, such as perfumes and fabrics, formed aspects of a co- herent business strategy. Chanel’s position was that illegal copying was the ultimate advertisement, costing nothing to the creator. Eliza- beth Hawes recalled, “There is an old tradition in Paris that the day a designer isn’t copied, he is dead.”85 Elsa Schiaparelli had a similar atti- tude. An argument could be made that accepting piracy was the only way to deal with it, but this required having considerable economic and social capital.86 Chanel had both.

79 CMR, 15 Oct. 1930, 3 and 2 Apr. 1931, 18, Affaire Aîné–Montaille, CSCP. 80 CMR, 24 Sept. 1930, 5–7, Affaire Alice Choquet, CSCP. 81 Chapsal, La chair, 213; Daves, Ready-Made Miracle, 148; Hawes, Fashion is Spinach,

60–61. 82 Advertisement for Chanel, Vogue, U.S. edition, 1 Nov. 1934, 99. 83 Fashion Group Bulletin, Jan. 1933, no. 3, box 144, Fashion Group International Ar-

chive, New York Public Library. 84 Advertisement for dresses in “Chanel Cloth” for the brand Rose Amado, Madison Ave.,

New York, in Vogue, U.S. ed. 15 Mar. 1932, 26. 85 Hawes, Fashion is Spinach, 46. 86 Pierre Bourdieu, “Le capital social: Notes provoisoires,” Actes de la recherches en

sciences sociales 31 (1980): 2–3.

Véronique Pouillard / 336

Could New York Develop Design Creativity without Paris?

Contrary to the hypothesis that fashion design did not develop in the U.S. until the outbreak of World War II, when the Paris fashion in- dustry was isolated by the German occupation, attempts to build an American design industry actually started shortly after 1910.87 During the interwar period, a movement to legitimize American style gained momentum, characterized by recurring campaigns to promote national styles and incremental attempts to institutionalize the American fash- ion business. The emergence of American design was partly an outcome of the Depression, which awakened both a need and a desire to buy na- tional goods, a call that became the marketing expression of protection- ist policies. American designers and journalists were also demonstrat- ing more confi dence in American design. For example, in 1927, a New York Times journalist, disappointed by that year’s season in Paris, won- dered in print whether the U.S. market should develop its own home- grown line.88 The Times’ chief fashion editor, Virginia Pope, was a strong supporter of New York’s creative talent.89

American talent was not properly recognized at this time for two main reasons. First, in the United States, designers, rather than being couturiers, as they were in France, were most often employees of entre- preneurs, and they were hired to work by the day or the hour. A second reason was that the New York fashion industry was experiencing diffi - culties in building its own image and creating symbolic capital. Fortune magazine asserted that the United States already had haute couture: a compound of famous names, like Elizabeth Hawes, and obscure ones, like Nettie Rosenstein. The money was there: New York entrepreneurs were earning as much, if not more, than their Parisian counterparts, and prices of high-end New York designs were in the same bracket as those produced in Paris: between $90 and $300 in 1933 (today US$9,000 to $30,000, using a GDP indicator).90 Fabrication costs of a dress were then nearly half as much in France as in the United States, where labor costs were higher. What the New York fashion world mostly lacked was self-confi dence.

After her period of sketching ended, Elizabeth Hawes returned to New York, where she became a stylist for department stores and manu- facturers. In response to America’s need for more designers, she opened

87 Sandra Stansbery Buckland, “Promoting American Designers, 1940–44: Building Our Own House,” in Twentieth–Century American Fashion, ed. Linda Welters and Patricia Cun- ningham (New York, 2005), 99–121.

88 “Seek Real Change in Women’s Styles,” NYT, 24 Apr. 1927, E19. 89 Claudia B. Kidwell and Margaret C. Christman, Suiting Everyone: The Democratiza-

tion of Clothing in America (Washington D.C., 1974), 177. 90 “The Dressmakers of the U.S.,” Fortune, Dec. 1933, 37–38.

Design Piracy in the Fashion Industry / 337

her own shop in New York in 1928 with capital provided by the rich cousin of a friend. She lost that partner’s backing after the October 1929 crash, but then found new capital and went on, incorporating Hawes, Inc., in 1930.91 She designed her own fashion line and was described in Fortune magazine as the “well-known Hawes.” During the 1930s, Hawes catered to New York elites, designing and selling high-end clothes. At the same time, she was designing clothes and accessories for manufac- turers, which she helped to advertise for department stores by endors- ing her own lines in the media. Her style was characterized by soft lines and bias-cut clothes. In 1931, she showed her fashions in Paris, an occa- sion she remembered as a success but that, according to the New York Times, was received coldly by the Paris crowd.92 In 1932, she com- mented that she felt New York should replace Paris as fashion center of the world.93

She advocated that American designers free themselves from con- formism, a condition for which she held the social establishment as re- sponsible as the Paris haute-couture circles: “To be fashionable in the USA . . . was to conform: to dress in accordance with an example or pattern; to show obedience to the benevolent dictator. . . . The fi rst American elected fashion dictator of American women’s fashion was Chanel.”94 Ironically, although Chanel was perceived as the epitome of fashion dictatorship in the U.S., she herself behaved as a copyright free rider in France.

American attempts to develop national styles were minimized by the French press, which maintained the view that while the French cou- turiers were taking design risks, American women were spending their money on American goods.95

Protecting Fashion Design in the United States

The Fashion Originators’ Guild of America (hereafter FOGA) was incorporated in 1932 for the purpose of protecting creativity in Ameri- can fashion design.96 The Guild was initiated by the New York dress manufacturer Maurice Rentner, who became its president. Rentner’s company, which he founded in 1909, added a number of offshoots and

91 Hawes, vita, 1, FIT. 92 Ibid.; “Paris Cold to Show of American Designer,” NYT, 25 July 1931, 2. 93 “Finds Style Center Here,” NYT, 14 Apr. 1932, 18. 94 Elizabeth Hawes, book draft, box 3, folder 1, reference x–149, Gladys Marcus Library,

FIT Special Collections. 95 Bertram J. Perkins, “Dress Up America Aims Somewhat Misinterpreted,” and “Les

Echos Cites Failure to Create American Style,” both in WWD, 19 May 1933, sec. 1, 2. 96 Marcketti, “Design Piracy,” 53.

Véronique Pouillard / 338

was one of the longest-lasting fi rms in the garment district. Rentner and his colleagues often traveled to Paris to see the collections, and the prices of his dresses matched those of Parisian high fashion.97

As fashion historian Sarah Beth Marcketti demonstrated in her groundbreaking dissertation, FOGA had been preceded by other initia- tives of American retailers. As early as in 1912, the Society of American Fashions was founded with the purpose of opposing fake labels.98 Be- tween the wars, several American associations attempted, with varied degrees of success, to rally dress manufacturers around the issues of copying and origination.

At the beginning, FOGA attracted manufacturers that produced garments selling in the price ranges of $22.50 (today US$350, using the CPI indicator) and up: high-end manufacturers and dressmakers making custom-made clothes (some enterprises combined both). Shortly after its incorporation, FOGA counted 130 members, mostly from New York. All these enterprises employed one or more in-house designers and produced between 200 and 450 new designs per year: some Paris reproductions, some adaptations, and some “totally U.S. designs.”99 New members of FOGA committed themselves not to buy or sell illegal copies of designs. FOGA sent undercover investigators to retail stores. Retailers that refused to discard items that FOGA judged to be illegal copies were marked by a red card, signifying that FOGA members would not do business with them.100

FOGA eventually comprised six sections: dresses, coats, junior-miss clothing, sportswear, textiles, and protective affi liates. The latter were not full members but constituted a special category of manufacturers in the lower price ranges. The list of FOGA members in 1932–33 included Hattie Carnegie, Jo Copeland, Joseph Halpert, Omar Kiam, Anna McCormick, Bergdorf Goodman, Saks-Fifth Avenue, Filene’s Brothers, Milgrim’s, Pattullo-Modes, Herbert Sondheim, Tailored Women, Jay- Thorpe, and Bonwit Teller & Co., all upper-grade couturiers, manufac- turers, and retailers.101 Notably, the list of FOGA’s textile associates contained not only New York members, but also those in the U.S. retail branches of high-end French textile manufacturers, such as Bianchini Férier; Coudurier, Fructus & Descher; and Ducharne.102

FOGA members began to schedule their own New York openings during one week per season. The dress and coat divisions gave their fi rst

97 Daves, Ready-Made Miracle, 61–62. 98 Marcketti, “Design Piracy,” 81. 99 “The Dressmakers of the U.S.,” 38. 100 Transcript of Andrew Goodman interview, 1–2, FIT. 101 “The Dressmakers of the U.S.,” 142; Marcketti, “Design Piracy,” 130. 102 Advertisement for FOGA, WWD, 26 June 1933, 10–11.

Design Piracy in the Fashion Industry / 339

show in July 1933, announcing that their clothes models were made from fabrics supplied by the textile division, which had some French members.103 While FOGA continued to support this week of fashion shows, the event itself did not become offi cial until 1956, when New York mayor Robert Wagner established Fashion Week.104

The Dress Creators League was incorporated on November 11, 1932, with the intention of uniting manufacturers that produced dresses priced between $10.75 and $16.75. FOGA lowered its threshold of $22.75 to accept members of the League as protective affi liates in April 1935, but the associations remained distinct from each other. In Octo- ber 1935, FOGA again lowered its price base and asked the retailers of wholesale lines selling items between $6.75 and $8.75 to sign an anti- piracy statement, a controversial move. In the fall of 1936, FOGA in- cluded the popular price lines of $3.75 and less (today US$58, using a CPI indicator). The Popular Priced Dress Manufacturers Group, how- ever, opposed this attempt because it suspected that FOGA was trying to impose a monopoly on the American dress trade.

Under the New Deal, during the brief period of the National Indus- trial Recovery Administration (NIRA), FOGA was accorded a place of increasing importance. NIRA conferred the force of law on FOGA’s codes.105 Expectations that U.S. copyright legislation would eventually include fashion design were high during this period. The lawyer Sylvan Gotshal, a prominent supporter of strengthening American copyright law, described NIRA’s impact on copyright as minimal. Nevertheless, NIRA launched a public movement of support for the practice of label- ing garments with the names of both the groups that belonged to FOGA and the manufacturer, and for banning labels that claimed false origins (such as fake Paris labels). On October 12, 1933, Eleanor Roosevelt and her daughter attended the public launching of the NIRA coat-and-suit label. The new Coat and Suit Code Authority, presided over by George W. Alger, regulated the use of labels on garments. The inaugural event took place at Del Monte-Hickey, a New York factory on Seventh Ave- nue, where the two fi rst labels issued under the National Recovery Ad- ministration (NRA) program were sewn into garments made for Elea- nor Roosevelt and her daughter.106

The application of NIRA policies was controversial.107 In late No- vember 1933, the Uptown Retail Guild of New York gave a dinner to

103 Advertisement, “Members of the Fashion Originators Guild of America Announce Their Opening Dates,” WWD, 28 June 1933, 3.

104 “Fashion Week Announced,” NYT, 7 Dec. 1956, 42. 105 Marcketti, “Design Piracy,” 119, 120, 131, 136–38, 145–46. 106 “Mrs. Roosevelt and Mrs. Dall to Get First NRA Coat Labels,” WWD, 4 Oct. 1933,

sec. 1, 1. 107 Alan Brinkley, Liberalism and Its Discontents (Cambridge, Mass., 1998), 37–44.

Véronique Pouillard / 340

honor Maurice Rentner, chairman of FOGA, at the Waldorf Astoria, hosting fi ve hundred department-store executives and other fashion- retail professionals.108 During his speech, P. A. O’Connell, former presi- dent of NRDGA, enumerated NRA’s virtues. He made the case that it would help to eliminate “economic banditry,” “the stampede of price cutting,” and “the prostitution of quality.” Only 10 percent of the busi- ness, according to O’Connell, had an obstructive attitude toward NRA policies. Rentner concluded the event by underlining the need to en- courage the public’s appreciation of “artistic detail,” rather than bol- stering their dependence on mass production. “Ingenuity of fashion is the antidote for excessive consumer thrift. If beauty and originality are stressed, feminine fancy will be caught and tightened purse strings will be loosened.”109

In order to eradicate illegal copying of original fashions in the U.S., FOGA established its own registration system that was reminiscent of French copyright law. Fashion originators could register a sketch, or even a description of a model article of clothing, for a period of six months. The item was assigned a date and a number. Foreign models and li- censed copies of foreign designs could not be registered.110 The National Federation of Designs, Inc., kept the models registered by FOGA, and its clearing house was the Design Registration Bureau. By 1936, FOGA was registering between 40,000 and 50,000 models a year.111

FOGA encouraged retailers to sign contracts (4,000 in 1933) pledg- ing that they would not buy or sell designs obtained from copyists.112 FOGA launched investigations to ensure that none of its members was reselling original Paris couture garments to renters of model designs. The organization worked to establish cooperation among French cou- ture houses and American manufacturers and custom authorities in tracking illegally imported models.113

FOGA also supported lawsuits against New York sketching busi- nesses, on the grounds that such services were illegally copying FOGA members’ designs.114 While FOGA’s agenda was similar to that of PAIS, it did not benefi t from the legislative framework that existed in France and so had to build its own system of registration and enforcement. Fines paid by enterprises for infringement of the rules were not redistributed

108 “Rentner to be Honored,” NYT, 20 Nov. 1933, 17. 109 “Retailers See NRA as a Lasting Boon,” NYT, 22 Nov. 1933, 5. 110 Unlike in other countries, such as, for example Germany and Belgium. Pouillard,

Hirsch & Cie. 111 Marcketti, “Design Piracy,” 133–35. 112 “The Dressmakers of the U.S.,” 142. 113 “Piguet Divulges Names of Firms to which Early Model Shipments Went,” WWD,

1 Sept. 1936, sec. 1, 1. 114 “FOGA et al., Sue Lucille Baldwin Here,” WWD, 14 Oct. 1936, sec. 1, 35.

Design Piracy in the Fashion Industry / 341

to the plaintiffs, but to charitable associations, a policy similar to those of PAIS and the Chambre syndicale in Paris.115

In January 1933, before FOGA expanded to include lower-priced manufacturers, the Washington offi ce of NRDGA started an inquiry into FOGA’s legality. Rentner’s response that FOGA did not restrain trade may well have been contradicted by FOGA’s red-carding policy, but his main argument concerning the protection of creativity held some force: “It cannot be illegal to protect property rights in style merchandise.”116

At the end of 1935, FOGA counted 250 members. There were be- tween 12,000 and 12,500 cooperating retailers in thirty-two states. In March 1936, the list of red-carded retailers included 400 stores across the country. Strawbridge & Clothier and Bloomingdale’s were given red cards at some point.117 One of their colleagues, Andrew Goodman, recalled that Filene’s was red carded and that it then started a civil law- suit against FOGA. Filene’s lost. However, Goodman expressed the opinion, echoing Hawes, that “in this business copyrighting is ridicu- lous. By the time something is copyrighted it’s dead. The legal protec- tion for such a thing is cumbersome and unworkable. . . . In this country the person who is protected is the copyist.”118

Opposition to FOGA developed among two main groups of fashion professionals: the manufacturers of cheaper lines and some retailers. While FOGA had strong links with some New York retailers, the organi- zation’s decision to extend its oversight to lines wholesaling at less than $10.75 caused some rifts between the original FOGA members and manufacturers of cheaper dresses. Nevertheless, they all renewed their agreements in 1936.119 However, FOGA did not join the two major re- tailers’ associations, the National Retail Dry Goods Association and the Associated Merchandising Corporation.120

In 1935, a group of members of NRDGA and the Association of Buying Offi ces sent out a confi dential questionnaire, asking their mem- bers to provide their feedback about FOGA. The answers to the ques- tionnaire indicated that the decision to cover cheaper lines was per- ceived as a bid by FOGA for control of “non-signatory specialty apparel and other stores in the lower-price fi eld.”121

The Popular Priced Dress Manufacturers Group became another major opponent of FOGA, issuing a statement that it considered the

115 “Fashion Guild Plans Protection Campaign,” WWD, 22 May 1934, sec. 2, 8. 116 “Question Dress Guild Plans,” NYT, 21 Jan. 1933, 29. 117 Marcketti, “Design Piracy,” 137. 118 Transcript of Andrew Goodman interview, 2, FIT. 119 “Two Guilds in Accord,” NYT, 4 Mar. 1936, 30. 120 Marcketti, “Design Piracy,” 130. 121 “Retailers Attack Dress Style Plan,” NYT, 21 Dec. 1935, 30.

Véronique Pouillard / 342

organization’s design registration system to be illegal.122 The Popular Priced Dress Manufacturers Group fi led a petition with the Federal Trade Commission, requesting that it launch an investigation into FOGA’s actions. The petition was backed by three hundred contractors that produced dresses for $4.75 and less, on the grounds that FOGA was practicing an “unlawful boycott, a monopoly in illegal restraint of trade and blacklisting”; they asked for a “cease and desist” order to be issued against FOGA.123 Middle- and low-priced dress retailers feared that FOGA’s actions would impact their volume sales. In response, FOGA declared that its policies were adopted to suppress the “evils” of the in- dustry, the worst of them being piracy; that its membership was en- tirely voluntary; that the association was fairly administered; and that its objective was neither monopoly nor boycott. FOGA members argued that they were trying to preserve their place as the second echelon in the hierarchy of fashion emulation, immediately below haute couture. They seemed hesitant to defi ne their organization’s place, stating that the original designs they were creating were not “as novel” as the ones purchased abroad. The FOGA members condemned style piracy for the use of cheap materials of inferior quality and for the use of sweatshop labor. Copyists competed on the basis of price, cutting costs through a system of bidding the cutting and assembly work to contractors, who lowered costs at the expense of the workforce.124 While they claimed that style pirates did not send their buyers to Paris, the example of Eliz- abeth Hawes shows that they were not being entirely truthful. The lack of coherence in FOGA’s argument hindered its response to the charges fi led by the Federal Trade Commission.

* * *

In May 1939, New York–based FOGA and Parisian PAIS announced that they would collaborate by checking the deliveries of haute-couture garments suspected of having been bought on behalf of model rent- ers.125 PAIS expected FOGA to police the U.S. market, with the result that suspected American copyists would be banned from attending sub- sequent fashion shows in Paris. Trouyet had assigned PAIS to be the sole authority for handling cooperation between Paris and American fash- ion fi rms.126 As the war approached, the work of PAIS continued under

122 Marcketti, “Design Piracy,” 122, 138. 123 “Peace Move Made in Guild Dispute,” NYT, 3 Mar. 1936, 30. 124 WWD, 6 Apr. 1939, 1, 6. 125 WWD, 16 May 1939, 4. 126 Bertram J. Perkins, “FOGA–Paris Plan to Check Delivery to Model Renters Interests

Returning Buyers,” WWD, 3 May 1939, 1; and “Trouyet, PAIS Piracy Defense Head, Resigns,” WWD, 26 May 1939, 1.

Design Piracy in the Fashion Industry / 343

the direction of an inner division of the Chambre syndicale, which pre- vented design renters from entering the haute-couture houses, blocking the renters’ attempts to circumvent the establishments’ guardians. The fl ow of American buyers to Paris was disrupted in 1940, and in the spring, the links between Paris and New York fashion were cut off by the German invasion and occupation of Paris.

American opponents of style protection, such as the Popular Priced Dress Manufacturers Group, believed that the burden of protection would fall on retailers. More generally, they were convinced that piracy boosted economic growth. Ultimately, FOGA’s opponents won the bat- tle, and FOGA was found guilty of violating the Sherman Anti-Trust Act in 1941, based on its policy of red-carding the retailers that promoted copies.127 After the war, FOGA still survived, but with reduced numbers, and it shifted its activity to design patents. These patents were dedi- cated to protecting functional design, which does not entirely overlap with fashion. Up to 1940, thirty-nine bills for fashion-related patent and copyright-law revisions were proposed to Congress, but all failed to receive approval.128

Conclusion

While historians often describe Paris and New York fashion as a contrast between art and industry, I have shown in this examination of trade associations on both sides of the Atlantic that the picture is in- complete. The Parisian PAIS and New York’s FOGA shared a similar agenda, working preventively by registering designs and repressively by blacklisting opponents and fi ling lawsuits. Maurice Rentner in New York and Madeleine Vionnet in Paris both sought protection for their investments. Their contrasting approaches grew out of the differences in French and U.S. copyright laws. France protected fashion design under its copyright law, and Paris couturiers hired teams of specialized lawyers to protect their ideas.129 By contrast, U.S. copyright law did not cover fashion, so American designers had to either resort to design pat- ent law or invoke their commercial right to protect their brands. Ameri- can jurisprudence also remained weak when it came to protecting fash- ion designs.

The legislators of the two countries did not agree on the creative merit of fashion design: while the French protected fashion as high art, the U.S. Congress denied fashion that status. Fashion copying was not a

127 Marcketti, “Design Piracy,” 142–43. 128 Ibid., 112–15. 129 Simon, La Haute Couture, 34.

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problem exclusively of transatlantic commerce. Between the wars, Ber- lin and Vienna were also centers of illegal fashion copying. After World War II, the Chambre syndicale de la couture parisienne worked suc- cessfully with European countries, including Italy and Belgium, to curb fashion piracy.

Today, the dilemma remains. The strong protections offered to fash- ion design by European law have been emulated by emerging fashion- producing centers like Japan and India. While U.S. laws contain severe charges against counterfeiting, they do not protect fashion design. Some experts argue that the absence of copyright protection is a factor in the economic dynamism of American fashion.130 The experience of an ear- lier era has demonstrated that copying pushes today’s American design- ers to innovate.131 However, not all American fashion designers agree that the outcome of this policy has been positive. The Council of Fash- ion Design of America continues to lobby the U.S. Congress to pass the Design Prohibition Act, which it introduced in 2006, that would add fashion design to U.S. copyright law.132

. . .

VERONIQUE POUILLARD is assistant professor of history at the Uni- versité Libre de Bruxelles and director of the seminar on fashion at the Insti- tut d’Histoire du Temps Présent in Paris. She is currently writing a book on the transatlantic history of the fashion business.

130 Kai Raustiala and Christopher Springman, “The Piracy Paradox: Innovation and Intel- lectual Property in Fashion Design,” Virginia Law Review 92 (2006).

131 Ruth La Ferla, “Imitate that Zipper!” NYT, 2 Sept. 2009, accessed on nytimes.com, 3 Sept. 2009.

132 Committee on the Judiciary, United States House of Representatives, “Statement of the United States Copyright Offi ce before the Subcommittee on Courts, the Internet, and In- tellectual Property,” 109th Congress, 2nd Sess., 27 July 2007, on-line at www.copyright.gov/ docs/regstat072706, accessed 2 Sept. 2009.

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