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Diane von Furstenberg: Fashion Innovator and Protector

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Saved by Nicole Eshaghpour
on March 2, 2009 at 1:40:25 am
 

Diane von Furstenberg is a leading name in American fashion, best known for her signature wrap dress.            

 

The designer founded Diane von Furstenberg Studio, L.P. (DVF) in 1972 and re-launched it in 1997.[1] DVF is headquartered in New York City and has grown into an international luxury lifestyle brand with a complete collection of ready-to-wear, swim, accessories, footwear and handbags.[2]

 

 

Diane: The Early Years[3]

Diane was born in Brussels, Belgium on December 31, 1946 into an upper-middle class Jewish household. She studied Economics at the University of Geneva, Switzerland, where she met and married Austro-Italian Prince Egon von Furstenberg.  Their marriage was considered dynastic and Diane became Princess Diane of Furstenberg at the time of the wedding.  The couple moved to New York, had two children, Alexandre and Tatiana, but divorced shortly after. Diane dropped her title from her professional name after the divorce.

 

Diane von Furstenberg made her debut in the fashion world with her signature wrap dress in New York City in 1972.  Diane’s marriage to Prince von Furstenberg influenced her decision to enter the fashion industry. As she once explained, “The minute I knew I was about to be Egon’s wife, I decided to have a career. I wanted to be someone of my own, and not just a plain little girl who got married beyond her desserts.”[4]  By 1976, Diane sold over five million wrap dresses, was featured on the covers of Newsweek & The Wall Street Journal, and was becoming a new icon for liberated women.  The iconic wrap dress was a symbol of female power and independence and was the beginning of what is today a full fashion house.  The dress is displayed in the collection of the Costume Institute of the Metropolitan Museum of Art.[5]

 

http://www.metmuseum.org/toah/hd/amsp/ho_1997.487.htm - 1970 wrap dress

 

 

In the following years, Diane started a number of successful businesses, including an in-house cosmetics line and home furnishing collection.  She licensed her name for a full range of DVF products, from eyewear to luggage, in 1975 and her dress business in 1979.  The licensed DVF products sold over one billion dollars in the 1980s.  She sold the cosmetics business to British pharmaceutical giant Beecham Group Ltd. in 1983.  Her company ranked within the top 10 in Savvy magazine’s annual survey of “Top U.S. Businesses Run by Women from 1984-1989 and the designer herself was honored with New York Mayor’s Liberty medal for citizens of the world who have achieved the American dream in 1985.  Despite all of her success, the market became saturated, her sales decreased, and Diane sold most of her licenses to avoid bankruptcy. She then moved to Paris and founded Salvy, a French-language publishing house. 

 

Diane: The Return to Fashion

Diane returned to the American fashion scene in 1990. She first reemerged as a pioneer in television-shopping of her Silk Assets collection, one of the earliest clothing lines for QVC.  The debut collection sold out in less than two hours. The success of the online collection gave her the confidence to re-launch the wrap dress and transform her company into the global luxury lifestyle brand that it is today.  She founded Diane Furstenberg Studio L.P to sell her signature dresses and other women apparel.  DVF has been a success with both consumers and critics and the business turned its first profit in 2003. DFV’s feminine styles are, once again, at the forefront of women’s fashion. In Diane's own words, "I was on the cover of Newsweek at age 29. . . To do it again now, that's even better." [6]

 

Today, there are twenty-six freestanding Diane von Furstenberg boutiques worldwide in major cities including New York, Los Angeles, London, Paris, Hong Kong, and Tokyo. DVF collections are also sold in select retail specialty stores in over fifty-six countries. The DVF Studio Headquarters are located in the Meatpacking District adjacent to one of the brand’s boutiques. The DVF Studio is an event space intended to cultivate new talent; it is used for exposing young artists and giving them a place to showcase their work. 

 

DVF has also partnered with other luxury leaders to diversify her collection. For example, DVF launched Diane von Furstenberg for H.Stern, a fine jewelry collection, and created signature rugs with The Rug Company.

 

 

Pictures of Building - http://www.thecoolhunter.net/design/Diane-von-Furstenberg-Studio---NYC/

 

Diane: Today

In regards to her private life, Diane remarried in 2001 to the American media mogul and former Paramount executive Barry Diller. In 2002, she became a naturalized U.S. citizen.

 

Professionally, Diane remains a powerful and creative voice in the fashion industry.  She published her memoirs, “Diane: A Signature Life,” in 1998.[7] She was awarded the Lifetime Achievement Award from the Council of Fashion Designers of America (CFDA) for her impact on fashion in 2005.  She was elected as the CFDA's new president a year later, an office she continues to hold.  Diane also sits on the board of Vital Voices, a women’s leadership organization that empowers emerging women leaders and social entrepreneurs, and of the Housatonic Valley Association. Diane is also an active member of the local community in New York's Meatpacking District. She opens up her studio to host cultural events and is involved in the campaign to save and redevelop the historical Highline railway.

 

During the New York Fall 2009 Fashion Week, Diane teamed up with American Express to stage a special runway show for American Express cardholders and executives.  Most runway shows are invite-only but this one was open to the public for $150.  The show featured Diane’s Spring/Summer 2009 collection and a few looks from the Fall 2009 collection that she showed during her regular runway show.[8] 

 

Diane: Advocate of Increased Intellectual Property Protection in the Fashion Industry 

Diane has aggressively protected the intellectual property of the DVF brand. In the last few years, she has filed lawsuits in five states to protect the brand and prevent infringers from copying its distinctive styles.[9]  Specifically, DVF has filed copyright infringement cases in the Southern District of New York against Forever 21 Retail Inc., Target Brands Inc., and Mango On-Line Inc.[10] DVF accused all three companies of reproducing and selling dresses and/or tops that are nearly identical to DVFcopyrighted designs.  

 

DVF filed a complaint against Forever 21 Retail Inc. on March 23, 2007 claiming that Forever 21 copied dress designs exclusively owned and copyrighted by DVF.  In particular, DVF alleged that Forever 21 produced, marketed, and sold dresses that are nearly identical to the DVF Cerisier, Aubrey, Parr and Edison dresses and Edith blouse which bear copyrighted DVF print designs.  The sales were conducted in its retail stores and on its website.  For example, DVF alleged that Forever 21’s $32 “Sabrina” smock dress looked confusingly similar to her own $325 “Cerisier” design.  DVF further claimed that the down-market retailer copied DVF’s exact scale and color for each design. For the entire complaint, see Complaint, Diane von Furstenberg Studio, LP v. Forever 21, Inc., 2007 WL 1643831 (S.D.N.Y. 2007) (1:07cv02413). 

  

DVF filed a similar complaint against Target Brands Inc. on January 24, 2008.  DVF alleged that Target produced, marketed, and sold dresses nearly identical to DVF’s Spotted Frog design in its stores and online. Specifically, DVF claimed that Target’s dress, marketed as “Merona Animal Print Wrap Dress,” resembled DVF’s signature jersey wrap dress and was a near identical copy of the scale, pattern, and color of the DVF Spotted Frog design.  After receiving notice from DVF of the alleged infringement, Target stopped offering the dress online but continued selling it in its retail stores. For the entire complaint, see Complaint, Diane von Furstenberg Studio, LP v. Target Brands, Inc., 2008 WL 887353 (S.D.N.Y. 2008) (1:08cv00866). 

  

Most recently, DVF filed a complaint against Mango On-Line Inc. on July 3, 2008 alleging that the retailer produced, marketed, and sold dresses nearly identical to DVF’s Macaroon Stripe and Tahitian Maze designs.  DVF alleged that Mango is marketing and selling dresses and blouses nearly identical to DVF’s print designs on their website and in their retail stores located in the United States and abroad. Under the Berne Convention, to which the United States is a party, each signatory country is obligated to give the same protection under its copyright laws to a work originating in another of the signatory countries as it would to a work originating within that country.   Therefore, each signatory of the Berne Convention is obligated to recognize and enforce DVF’s copyrights in the DVF designs as they would if the DVF designs had originated in that country.  Therefore, DVF alleged that Mango infringed on DVF’s intellectual property rights both in the United States and in those foreign countries who are party to the Berne Convention, such as Australia and Israel.  Despite assuring DVF in a June 2008 letter that they would cease all sales of the accused clothing, Mango continued offering the clothing for sale.  For the entire complaint, see Complaint, Diane von Furstenberg Studio, LP v. Mango On-Line Inc., 2008 WL 4486754 (S.D.N.Y. 2008) (1:08cv06154). .

  

In all three lawsuits, DVF sought money damages, injunctive relief, and a recall and destruction of all garments and promotional materials found to be infringing their copyrights. In the Mango case, DVF asked for an international recall requiring Mango to stop the sale of the infringing clothing in all signatory countries of the Berne Convention. 

 

Currently, US copyright law protects original elements of clothing, such as print designs, but does not protect clothing designs themselves.  Copyright protection is generally available for "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or other wise communicated, either directly or with the aid of a machine or device." [11]  The originality requirement is generally not onerous – a work is deemed original if it was independently created and not copied from another work. The fixation requirement is satisfied once the work is in a stable and permanent form, such as being in written or in audio form. However, copyright protection does not extend to useful items. A useful article is defined as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.”[12]   Accordingly, notwithstanding its aesthetic appeal, clothing is considered a useful item meant to be worn that is outside of copyright law.

 

While a clothing design itself is not copyrightable, individual design elements of clothing may receive copyright protection if the test of conceptual separability is met.  The test says that elements of a useful article are copyrightable if their aesthetic features can be “identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”[13] Therefore, while dresses, tops, and other clothing items cannot be protected under copyright law, prints and patterns are protectable because of their artistic value.[14]

 

Accordingly, while DVF clothing is not subject to copyright protection, the original patterns on the clothing, such as the Spotted Frog Design, Macaroon Stripe and the other designs referred to in the lawsuits, are copyrightable.  DVF was at a significant advantage in the lawsuits because it had registered the original print and fashion designs allegedly infringed upon before filing.  Registration is not required to acquire copyright protection because protection automatically exists from the moment of creation for any work.[15] However, registration does provide a copyright owner with important benefits.  Registration is a prerequisite for bringing a copyright infringement lawsuit, makes a copyright owner eligible to receive statutory damages and legal costs and attorney fees from a copyright infringer, and gives the registrant the presumption of originality and ownership of the copyrighted work.

 

DVF was at least partially successful in its copyright infringement lawsuits. Although many of the details of the court decisions were confidential, the copyrighted DVF prints seem to have received protection in the settlement agreements.  In the Forever 21 case, the court issued a permanent injunction against the retailer and its affiliates that permanently enjoined them from selling designs substantially similar to the DVF designs.  Shortly after, the parties settled the dispute with a confidential settlement agreement.  The docket of the case is available at Forever 21, Inc., 2007 WL 1643831 (1:07cv02413).  Similarly, in the Target Brands case, the court issued a permanent injunction against the defendant and the parties then settled the dispute. The docket is available at Target Brands, Inc., 2008 WL 887353 (1:08cv00866). Lastly, Mango filed an answer to DVF’s complaint but the lawsuit has not yet been resolved.  The docket is available at Mango On-Line Inc., 2008 WL 4486754 (1:08cv06154). 

  

Diane von Furstenberg is among the vocal fashion designers pushing for increased intellectual property protection in the fashion industry.  The Design Piracy Prohibition Act, which died in front of the US Senate committee in August 2007, intends to amend the Copyright Act.[16]  It would provide copyright protection to original fashion designs for three years from the day the design is revealed to the public and a maximum penalty of $250,000 for infringement.  Designers would be entitled to copyright protection for not only their original print patterns, which receive protection under current law, but also for original clothing designs themselves.  Many designers, including Diane, and the CFDA, of which Diane presides as president, support the legislation because it would provide recourse against the copyright of their designs as opposed to only elements of their designs.  Although many original works of art, such as movies, are protected for much longer periods, advocates of the bill are satisfied with the three-year protection it provides for clothing designs since fashion trends significantly change each season. Critics contend that increased copyright protection will hurt the fashion industry as a whole by curtailing designers’ creativity and innovation.  Proponents, however, are in strong support of the bill because it would provide designers’ recourse against the copying of their clothing in the form of inexpensive, low-quality knockoffs – such as those produced by retailers Forever21, Target, and Mango that were the subject of the DVF lawsuits.  The bill will grant higher-end designers, such as Diane, an exclusive three year period to sell their clothing at premium prices before competing against inexpensive knockoffs that flood the market.

  

The future of the Act is uncertain but proponents are hoping that the bill will be reintroduced in the Senate. In the meantime, designers, like Diane von Furstenberg, should continue to service the fashion industry by taking action against infringers and advocating for protection that covers not only individual design elements of clothing but the clothing design itself.

 

 

 

 



[1] DVF is formed as a Delaware limited partnership. 

[2] DVF headquarters are located at 874 Washington Street, New York, NY 10014. Previously, the studio and Diane’s residence were at the late artist Lowell Nesbit’s space at 389 W 12th St., New York, NY 10014. 

[4] Joyce Maynard, The Princess Who is Everywhere, N.Y. Times, February 16, 1877. 

[5] Diane Von Furstenberg: Wrap Dress (1997.487), In Heilbrunn Timeline of Art History. New York; The Metropolitan Musuem of Art (October 2006), available at http://www.metmuseum.org/toah/hd/amsp/ho 1997.487.htm.   http://www.metmuseum.org/toah/hd/amsp/ho_1997.487.htm.

[7] Simon & Schuster, 1998.

[8] http://blogs.wsj.com/runway/2009/02/19/diane-von-furstenberg-produces-a-consumer-show/

[10] DVF also brought claims of unfair competition and false designation of origin, unlawful deceptive acts and practices, and unfair competition under New York State law in the three lawsuits. 

[11] See 17 U.S.C. § 102 (copyright protection exists in “original works of authorship fixed in any tangible medium of expression . . . from which they can be perceived, reproduced, or otherwise communicated.”).

[12] 17 U.S.C. § 101.

[13] Id.

[14] See, e.g., Even of Milady v. Impression Bridal, 957 F.Supp. 484, 489 (S.D.NY. 1997) (holding that lace designs of bridal dresses are copyrightable); Peter Pan Fabrics, Inc. v. Brenda Fabrics, Inc., 169 F.Supp. 142, 143 (S.D.N.Y. 1959) (holding that a design print on a dress fabric is copyrightable).

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