Fashion or Faux: Copyright Law Heads Back to Congress

The American fashion industry is gearing up for a fight as lawmakers in Washington, D.C., prepare to reintroduce a piece of legislation that seeks to extend copyright protection to fashion design.

On one side of the issue are designers who want to protect their creations from being knocked off by larger companies that can reproduce the look for less. On the other side are large- and mid-sized manufacturers that argue the proposed law will lead to a flurry of unnecessary lawsuits and halt the free flow of trends.

It’s a common practice for designers and manufacturers to shop the world for inspiration and cull ideas from other designers’ lines. How close the new item hews to the original is up to the designer.

Proponents of the new legislation say if the new item “closely and substantially” resembles the original, it should be considered a copyright infringement. Those opposed to the law argue that they are interpreting trends and translating those trends into other segments of the market.

Extending the law

Copyright protection is available to works of original authorship, including artwork, writing, film and music. Protection stops short of anything deemed “useful,” which includes fashion and footwear. Current copyright law, as it applies to the apparel industry, covers two-dimensional artwork such as textile design, sketches and decorative topical designs, including embroideries and beading. And while jewelry is protected, a jeweled belt is not.

The proposed law, called the Design Piracy Prohibition Act, was introduced by U.S. Rep. Bob Goodlatte (R–Roanoke, Va.) last year and is expected to be reintroduced this month. U.S. Rep. Howard Berman (D–San Fernando Valley, Calif.) is chairing the subcommittee reviewing the legislation.

“It raises important issues,” said Berman, whose father worked in California’s apparel industry for many years and whose district is home to several apparel manufacturers.

The Design Piracy Prohibition Act would extend copyright protection to original garments for a period of three years, for designs registered with the copyright office at the United States Library of Congress. The law would give the designers and manufacturers a legal avenue to maintain some exclusivity to their creations. The rationale behind the three-year protection is to give the designer time to bring the look to market, then be able to knock it off themselves in a lowerpriced diffusion line before releasing it to the public domain.

In some ways, the proposed design piracy law mirrors existing European law, which protects original apparel design for three years for unregistered designs and five years for registered designs (which is renewable up to 25 years). Intellectual-property attorney Alain Coblence drafted the law, reviewing existing European legislation and case law, as well as a 1997 amendment to existing U.S. copyright code that granted an exception to the useful-objects exclusion—boat hulls.

According to the text of the design piracy law, “a design shall not be deemed to have been copied from a protected design if it is original and not closely and substantially similar in overall visual appearance to a protected design.”

The copyright issue is a contentious one, and Berman and other lawmakers in Washington, D.C., will be hearing from designers and manufacturers on both sides of the issue in the coming weeks.

“There’s obviously damage being done in the piracy of designs,” said Berman. “How do we stop that? And what’s the appropriate way to stop it? Because I’m chairman of the subcommittee, I want to do this right. I’m not going to just turn my back on this issue.”

The cons of copyright

There are many within the apparel industry and the legal community who argue that passage of the design piracy law would slow the creative process to a snail’s pace while giving rise to unnecessary and costly lawsuits. Instead of helping young designers protect themselves, they argue, this law could put small companies at a disadvantage to large companies.

“The fashion industry is driven by trends, and trends require that some degree of copying or homage occur,” said law professor Kal Raustiala. “Take away the ability to generate trends and you lose what is distinctive about fashion.”

Raustiala is the director of the Ronald W. Burkle Center for International Relations and professor at the University of California–Los Angeles Law School and UCLA International Institute. He was among the opponents of the design piracy law who offered testimony against it when it was first brought before Congress last year.

“It will lead to great legal uncertainty and a chilling effect on many smaller designers and lower-end producers,” he continued. “I think for L.A., which tends to feature denim, sportswear and manufacturers working at lower price points, this bill may be particularly harmful, because the real winners are likely to be the major global brands.”

Raustiala was among the panelists discussing copyright issues at a Feb. 28 seminar in Los Angeles hosted by the California Fashion Association. The other panelists included designer Trina Turk; Staci Riordan, an attorney and apparel industry specialist with Thelen Reid Brown Raysman & Steiner LLP; Vera Campbell, owner of Los Angeles–based juniors and children’s line Knit Works; and Howard Scott, president and owner of Coast to Coast Fabrics, a Los Angeles–based textile company that produces original prints.

“We are in a very litigious business,” said Campbell, who good-naturedly noted that she and Scott had been on opposing sides of copyright disputes in the past.

“I am in the volume market,” she said. “We knock off garments. We interpret them. For the volume market, we need to know it’s going to sell at retail.”

To illustrate how litigious the apparel industry can be, Campbell related a story about purchasing a hand-beaded cashmere sweater from London retailer Whistles. The cashmere sweater ended up in the Knit Works line in a lessexpensive fabric with machine-stitched beading. The JCPenney catalog ordered Campbell’s sweater, and the Limited Too did their own version of the sweater. Campbell was sued by a third party—a Los Angeles–based designer—for copyright infringement of the sweater’s beading pattern. “I know full well I have not copied their garment,” Campbell said. “I know what I’ve copied. We’ve both knocked off the same garment.”

In the course of investigating the matter, Campbell called Whistles’ knitwear designer and learned she had knocked the style off from Italian label Blumarine.

In the end, Campbell opted to settle the suit rather than fight it out in court, but she noted, “This has become very prevalent in the volume market.”

Tracking the trends, avoiding lawsuits

Intent and originality are at the heart of the proposed design piracy law.

“The issue is whether enough details have been copied that the overall visual impression is that it is the same dress,” Coblence said.

The litmus test, he continued, is whether the copy would confuse the general public about the origin of the product—if “it looks so close that you think that it is a Marc Jacobs [design].”

The attorney maintains that the design piracy law will have no effect on the flow of trends across categories and price points, arguing that the proposed legislation will not only preserve trends, but also encourage companies to be more innovative.

“Our legislation is written to preserve trends, to allow inspiration,” he said. “A trend is a trend, but plagiarism is plagiarism.”

CFA Executive Director Ilse Metchek forecast a dire picture of the apparel business under the design piracy law with retail buyers demanding indemnification against copyright claims before they place an order.

“The buyer will say, ’Prove to me that I’m not going to get sued as the purveyor of what you say is original,’” she said. “Everybody below couture is going to be suing each other. Fashion shows will be closed runways—buyers only. And once it hits the stores, is it going to be open season again?”

But Coblence counters that Europe’s law has proved to be a deterrent to copying, with few design piracy cases actually brought to trial. He expects a similar result if the design piracy law is passed in the United States.

“Look, when they copy they know it. And they do it because it’s legal,” he said. “The day it’s no longer legal and they risk being sued, they’ll stop.”

Small world, new realities

Years ago, before retail consolidation centralized buying and the Internet gave consumers around the world an immediate look at collections on the runway, this was hardly an issue. Consumers had to wait for trends to filter down from the runways to the retail floor. When knockoff styles occurred, the consumer was unlikely to ever see the original—especially if it came from a designer or retail store located across the country, let alone around the world.

But now that the apparel industry operates globally and technology has cut production time from months to weeks, or even days, knockoffs of highend looks can be in the retail stores weeks or months ahead of the originals— and designers, manufacturers and consumers have the ability to follow a trend from the moment it’s shown on the runway.

During a recent study tour sponsored by the French Embassy in Washington, D.C., and the French-American Foundation, American media and businesspeople met with French designers working out of Paris and Marseilles, France. Just like their American counterparts, the French designers recounted tales of having their original designs usurped by larger companies.

It’s the rare Los Angeles designer who doesn’t have a story about being knocked off by a competitor or a lesser-priced volume manufacturer or even their own retail accounts.

According to Coblence, the design piracy law would give these designers a legal platform to protect themselves.

But Metchek counters that many Los Angeles labels have achieved great success without the law—and with an original product that was immediately knocked off.

Juicy [Couture designers Pam Skaist-Levy and Gela Taylor] didn’t need this law, and they were knocked off all the time,” she said. “But they had the right look, the right connections and the right personalities [to succeed].”

The design piracy law could be reintroduced to Congress as early as the week of March 19, according to Coblence, who is working with his client, the Council of Fashion Designers of America, to drum up support for the legislation. On March 29, the CFDA will bring a group of designers and representatives from Harpers Bazaar to Washington, D.C., to lobby lawmakers to support the measure. Metchek is planning to hold another CFA-sponsored seminar on the copyright issue later this month in Vernon, Calif. And intellectual- property specialists are watching the legislation to see how it will affect their clients.

“Either way, you head down a slippery slope. If you extend protection too far, you can chill the market—if there’s a trend out there, you can’t follow it,” said Douglas M. Lipstone, senior counsel for Los Angeles–based law firm Buchalter Nemer. “But if people cannot protect their leading-edge design, where’s the incentive for them to continue to design?”