Industry Voices: No Examples Necessary: A Clear Look Into the IDPA
California Apparel News has been covering the debate surrounding the proposed Innovative Design Protection Act (S. 3523), which would extend copyright protection to fashion designs. Recent stories have explained the supporting and opposing viewpoints. The following is in response to an Oct. 19 Industry Voices article, titled“A Response to the IDPA Design Piracy Bill,” by Lonnie Kane, president and owner of Los Angeles–based Karen Kane Inc.
For the past several weeks, California Apparel News has moderated a constructive dialogue about the recently introduced Innovative Design Protection Act (IDPA).On Oct. 19, Lonnie Kane offered a thoughtful response to a joint explanation of this important legislation by the American Apparel & Footwear Association (AAFA) and the Council of Fashion Designers of America (CFDA).
We thank Mr. Kane for his passion for the industry and appreciate his concern with the bill recently introduced by Sen. Charles E. Schumer (D–N.Y.). We have long respected Mr. Kane as an industry leader.In fact, just last week, Mr. Kane hosted AAFA and some of the industry’s human-resources leaders and educators and exposed us to their dynamic and innovative workplace culture.
In his response, Mr. Kane highlighted his concern that the goal of the legislation is to enable someone to claim and assert a design right over the types of garments that his company makes. He is worried that someone other than him will be able to claim this ownership and run him out of business through lawsuits and other forms of legal intimidation. Nothing could be further from the truth. In fact, everything his company makes is completely protected from liability for one simple reason: The designs already exist in the public domain.
The concept behind the public domain is the corner piece of the IDPA. When Mr. Kane asks for an example of something that would qualify for protection, he is actually asking the wrong question.If the question were “what can’t be protected under IDPA?” the answer would be simple: “Nothing that currently exists in fashion may ever be protected under the IDPA because those items exist in the public domain.” This legislation is not targeted for articles of clothing and footwear of the past and present. This legislation seeks to offer protection to those few original items that will come in the future, after enactment of the IDPA.
It is for this reason that the IDPA is forward-thinking and offers protection to designers and companies such as Mr. Kane’s, should he or his team develop something after enactment of the bill that has truly never been seen before. It is true that the history of fashion is expansive. In the beginning, clothing was simply utilitarian without any redeemable artistic qualities. Fast forward a few millennia to today, when fashion is comprised of utility and art. The IDPA looks to protect simply the original artistic elements of a garment, not its utility. That being said, art is not new to fashion, and those pieces of art that have existed in past garments are also open for public use and therefore not protectable.
The legislation spells out a series of thresholds that any possible plaintiff would have to meet. Mr. Kane could stop a complaint himself before it even starts by showing the article in question is already in the public domain. No lawyers necessary.
Like Mr. Kane, AAFA has experienced its own doubts about the need for design-piracy legislation. We found older versions of the legislation to be overly broad and full of loopholes that could lead to endless litigation. Over the past two years, we have worked closely with congressional leaders, industry experts and the CFDA to achieve meaningful balance on the real but narrow issue of design piracy. The resulting IDPA spurs creativity, prevents lawsuits and enables the industry to function tomorrow as it does today. ●
