In the comments of my entry on knock-off fashion, Gerald Joseph told me to check out counterfeitchic.com before writing more on the issue of counterfeits and copies in the fashion industry. It turns out to be a wonderful site, full of verve and personality, run by a visiting professor at Fordham Law School named Susan Scafidi. Unlike most of the people I encountered on my counterfeiting crusade, Scafidi is very outgoing and more than happy to debate her position on the bill currently before Congress which would allow fashion designers to copyright their designs.

Here, then, is a a Q&A with Scafidi. I learned a lot, and Mr Joseph turned out to be right: I do now have a more balanced view of the issue. It could be that Surowiecki is right and that the fashion industry as a whole will not benefit from the passage of this bill, but that Scafidi is also right and that smaller, younger, and less established designers would benefit. It does make sense to me that if a big retailer like Forever 21 wants to make a faithful copy of a young designer's work, it should at least be willing to pay that designer something for her creativity and inspiration. But with the law as it stands, it seems, there's no incentive for the retailer to do that.

Felix Salmon: Susan, I'm very interested in your take on Jim Surowiecki's column in this week's New Yorker. He claims that copying is good for the fashion industry, and makes a number of points:

• As copying has grown, so have revenues and profits at the big fashion houses. Empirically, it doesn't seem to do any harm.
• Copying helps fashion consumers get bored with this season's clothes and therefore desire next season's.
• If you allow copying, you allow the remix culture which has fueled fashion for decades.
• People who can't afford originals can afford copies: copies are the best way to get a new generation to take fashion seriously, and they play a crucial role in imbuing high-end labels with that crucial yet elusive sense of desirability without which fashion would simply evaporate.

Is he wrong, or misguided?

Susan Scafidi: Felix, the tired, old argument that copying is good for fashion has been around since at least the 1920s – and has been clearly false since at least since the 1960s, when fashion's youthquake upset the previous hierarchies of creativity. The article is based on an outdated, pre-internet portrait of the industry – in other words, it's "out."

The specific parts of the article that you've quoted are just as bad as the whole.

• Revenues and profits at the big fashion houses rely heavily on trademark protection – all those little "CC," "GG," and "LV" initials decorating handbags and other must-have items. It is an empirical fact that established fashion houses have thrived with intellectual property protection, not without it. Small emerging designers, who cannot yet hide behind their trademarks, continue to suffer from the copying of their designs, as do designers whose artistic vision doesn't include giant logos or repetitive elements of trade dress. In addition, jewelry and textile prints have enjoyed full copyright for over 50 years – actual fashion designs deserve some legal protection as well.
• Fashions have traditionally changed with the weather, with or without copying. Today, moreover, the speed of the internet and other technologies allows copies to make it to the stores before the originals. When Narciso Rodriguez designed Carolyn Bessette Kennedy's wedding gown, one copyist alone sold approximately 80,000 copies; by the time Narciso was able to produce the dress, he sold about 45. The "fashion cycle" has been short-circuited.
• Creative designers don't just make "remixes" – they produce original works. In fact, Marc Jacobs' most recent show was considered unsuccessful by fashion critics because it was too derivative of others' work Since the proposed design protection applies only to garments "as a whole," it won't prevent original remixes anyway.
• Creativity now exists at all price points – as does copying. $30 Crocs are knocked off for $10 – despite the fact that nobody over 6 years old should wear the either the originals or the copies. In addition, our buying habits now blend high and low; a recent study showed that 20% of consumers who buy counterfeits make over $100,000 per year.
• The best way get any generation to take fashion seriously is to recognize it as a creative medium and give designers the legal respect and support they need – in Constitutional terms, "to promote the Progress of Science and useful Arts."

Felix Salmon: Susan, is it really true that the big fashion houses thrive because of trademark protection? It seems to me that those trademarks are violated regularly, that the culprits are rarely prosecuted, and that the fashion houses nevertheless go from strength to strength. Anecdotally, it's very hard to prosecute anybody for selling counterfeit D&G material, because D&G in Italy is so unhelpful and uncooperative -- maybe they know that those counterfeits only serve to burnish the desirability of their own brand, and that they act as free advertising?

It's true that a copy does not necessarily constitute a trademark infringement. But which designers, exactly, suffer from being copied? If an emerging designer with a tiny showroom gets copied by a massive High Street chain like Forever 21, does that really mean the designer will sell fewer original designs? Are you quite sure that Narciso Rodriguez would have sold more than 45 wedding dresses were it not for the fact that his design had been copied? And if internet time is of the essence in such cases, how would a slow and lumbering copyright-infringement lawsuit help anybody? By the time it was decided, would it not be too late for all concerned?

Similarly, the key question when it comes to counterfeits is not the number of people on six-figure salaries who buy them; rather, it's the number of people, on whatever income, who in the absence of the counterfeit would have bought the real thing instead. And against that one must weigh the number of genuine buyers who, without the extra brand recognition afforded by the global counterfeiting industry, would never have found that brand desirable in the first place and wouldn't have bought the real thing.

As for recognizing fashion as a creative medium, I'm not sure why that necessitates copyright protection: as Surowiecki points out, "haute cuisine, furniture design, and magic tricks are all fields where innovators produce new work without being able to copyright it." Should they all receive the same legal protection you wish for clothes?

Susan Scafidi: Yes, Felix, big fashion houses do rely on trademark protection – you didn't think that all of those repeated logos were just aesthetic choices, did you? Of course, there are other reasons for selling clearly branded merchandise as well, but legal protection is a distinct benefit. Counterfeiting is an issue, but companies in most consumer goods industries (luxury and otherwise) spend millions of dollars around the globe registering their marks, hiring companies to ferret out both online and brick-and-mortar infringers, conducting raids, educating customs officials, and bringing civil lawsuits and cooperating in criminal suits against them. In other words, counterfeiting occurs on a large scale, but so do anti-counterfeiting enforcement efforts – and companies consider it worth the effort. Interestingly, three different general counsels of fashion companies have recently told me that despite the scale of these efforts, their PR departments don't want them publicized – for fear of associated their brands with counterfeits. Companies who carefully manage their brands don't consider a poor-quality fake sold out of a garbage bag on a street corner to be free advertising. When it comes to reputation, the word they use is not "burnish," it's "tarnish."

The key question when it comes to the harmful effect of copies – counterfeit trademarks or knockoffs – is not only how may people would have bought the real thing, but also how great is the negative effect of cheap knockoffs on the reputation of the original label. Trademark counterfeiting doesn't create brand recognition; brand recognition leads to trademark counterfeiting. Counterfeiters don't bother with unknown trademarks.

The designers who suffer from copying are the little guys – those whose designs are copied, while their trademarks are not. Consider the accessories designer who received an order for a belt from a large department store – only to have the store place its larger reorder with a cheaper manufacturer. Or how about the jeweler whose work was admired by a buyer at a trade show and hoped for a sale, only to open the large company's catalog months later and see an exact copy of her design? Maybe the dress designer who saw her dress praised in an online forum, only to have the next post recommend buying an exact knockoff elsewhere – followed by thanks for the "tip"? Perhaps you'd be convinced by the handbag designer who actually received a wholesale order, only to have it canceled a few days later because the buyer found an exact copy of her original design elsewhere at a lower price? The stories are common ones, but these are not hypothetical examples. These are real people, some of whom prefer not to be named. They have invested time, money, and talent – R&D to any other industry – in realizing their visions, only to have their work stolen, often by huge companies. You would recognize many of the names of the corporate copyists; I doubt that most readers would ever have heard of the startup designers.

I don't know how many dresses Narciso would have sold if his design hadn't been copied, though he could probably make an educated guess – but that's exactly the point. Nobody really knows. He never had a fair chance.

The benefit of the Design Piracy Prohibition Act is not just that it would give Narciso and many lesser-known designers a cause of action. It's that it would change the behavior of the large companies who stalk the runway and the red carpet, waiting to copy everyone's favorite look – without spending a dime on sketches, samples, fittings, patterns, models, hair, makeup, stylists, presentation space, photographers…need I go on? The copyists are professionals, in the game for the cash, not creativity. If these design pirates know they risk lawsuits over too-close copies, they'll be forced to innovate, which is the goal of the intellectual property system in the first place. If they copy anyway, a cease & desist letter may be enough to stop them. And if it becomes necessary to file a lawsuit, most will settle and pay up. That's what happens now in many textile copyright lawsuits in the U.S.; that's also what happens in countries that currently have design protection, including all of the E.U., Japan , and even India.

In making comparisons between fashion and other industries, the New Yorker apparently hasn't looked into their legal and social realities. Furniture is protected by design patents (overall shape), copyright (surface designs), and trademark – not to mention utility patents (innovative useful elements). One lawyer who represents a number of furniture clients described the process of protecting their designs to me as "triage," identifying what needs to be protected and sending it to the appropriate government office. Cuisine has a small amount of protection from copyright (recipe collections), and much more from the social norms against copying among creative chefs, particularly when it comes to signature dishes. Since my father is a serious amateur magician (and I confess to having performed a bit myself years ago), magic tricks are my favorite inapposite example. Not only is the literature copyrighted, but many effects are deliberately kept secret by magicians, and unlike fashion can't be torn apart at the seams by interlopers. Penn & Teller's antics aside, there's a guild – and it takes some effort to reach the inner circle.

Every industry is unique, and most copyright protection is one-size-fits-all. In the case of fashion, designers recognize the seasonal nature of their work and are seeking only 3 years of protection – not the term of "life of the author plus 70 years" granted to other creators and their work, you and me and these words included.

If the U.S. really does recognize fashion as a creative medium, we should realize that young designers are struggling against copyists and extend a legal helping hand.