California Apparel News

The Design Piracy Prohibition Act, proposed last year by U.S. Rep. Bob Goodlatte (R–Roanoke, Va.), was reintroduced this year to both houses of Congress after several months of review by a subcommittee chaired by U.S. Rep. Howard Berman (D–San Fernando Valley, Calif.). The proposed law would extend copyright protection beyond existing coverage of textile prints, patterns and surface design to include original apparel and accessories. If passed, the law would grant copyright protection to original apparel and clothing for a period of three years, in effect giving designers and manufacturers a legal avenue to maintain some exclusivity to their creations. The three-year protection was intended to give the original designer time to bring the look to market and then be able to knock it off for a subsequent collection or a lower-priced diffusion line before the design enters the public domain. The Design Piracy bill has attracted some well-known supporters, including Council of Fashion Designers of America President Diane von Furstenberg, designer Nicole Miller and “Project Runway” star Tim Gunn. But there are many in the fashion industry who oppose the law, including California Fashion Association Executive Director Ilse Metchek and many California-based copyright attorneys and financial-industry executives. On one side of the debate are the opponents, who say the law will halt the flow of trends from the top echelon of design down to the mass market. The proponents say fashion trends will still permeate the market, but now designers will have a legal means to protect their designs from being copied as soon as—or sometime before—they hit the retail floor.

The recently proposed law extending copyright protection to finished garments, if passed, will have a potentially devastating impact upon the apparel and accessories industry in the United States.

Currently, copyright law protects textile patterns and prints, as well as certain embellishments, and trademark law protects labels as well as logos, such as distinctive pocket stitching on jeans. Trademark laws protect logos, and patents can protect “innovative” and ornamental design elements. Counterfeiting and piracy are clearly illegal activities. But design—that is, the cut, shape or overall appearance of a dress or shirt—is not currently protected.

The latest “fashion piracy” bill, titled the Design Piracy Prohibition Act, in its present form would amend current copyright law to allow companies and designers to register fashion designs for three years of protection, including apparel, footwear, handbags, belts and eyeglass frames. The fine would be $250,000, or $5 for each copied item, whichever is more.

Unlike the music, film or publishing industries, copying of fashion designs has never emerged as a threat to the survival of the fashion industry. Indeed, growth and creativity in the fashion industry depend on copying.

Fashion designers do not sit in a closed room and suddenly become “thunderstruck” with an inspired creation. They pay close attention to the work of their peers, and they dive into historical periodicals to look for past ideas (such as “vintage inspired” design). When they see something that they like, they “adapt” it. Gucci adapts the Harley motorcycle jacket; Chanel puts sequins on a “hoodie.” They may or may not copy point for point, although sometimes they do. Much more often, merchandisers take an element of an attractive design, work with it and turn out something that is in the same style but not identical—and usually for a totally dif ferent market category. Designers and fashion producers constantly turn the pages of fashion magazines or troll the Internet, taking a design they like, putting their own creative spin on it and offering the look as their own “new” style for what they hope will be a successful season. Copying makes trends, and trends are what sell fashion.

Every season, companies take inspiration from others’ designs. And every season, we see some looks catch on as trends have a moment of wide appeal, and then the industr y moves on to the next “big” thing. The fashion industry churns out new designs every 10 weeks or so. This cycle is accelerated by the current desire of consumers of all ages and sexes to be aware of the latest thing, even if they do not buy it.

One basic point about the proposed copyright law is that it does not simply prohibit “exact” copies. Rather, the new proposed copyright law makes unlawful any use of a copyrighted work that results in a new work that is “substantially similar” to the old. The standard for “substantial similarity” is quite low.

Even under existing copyright law, courts have found there to be copyright infringement where no professional in the field would mistake one for the other. Do we want judges to become the arbiters of fashion innovations?

The new law would enable designers to claim copyrights over styles and features they didn’t invent. There are only so many ways to design a T-shirt or a strapless dress, and chances are, it has already been done. Additionally, lawsuits would only be able to target U.S. apparel makers. Just try suing a “copier” in China. Or Mexico. Or even Europe.

If this bill passes, we will see “ceaseand- desist” letters all over the place and a flurry of expensive, time-consuming lawsuits with designers arguing over who was the originator of every new trend. If judges and juries decide who is right, it is certainly not good for creativity; it’s just a distraction. There’s no doubt that some apparel designers suffer because of excessive copying. But the industry as a whole is doing ver y well. It is a $350 billion-ayear industry—and growing—because of international trade.

In addition, there is reason to believe that the financial institutions in the industry will see unlimited liability as an extraordinary risk; the present financial structure will be curtailed or even derailed.

The central question is whether fashion design is an “art” worthy of protection or a “craft,” where our product developers freely copy from one another to create a look. Copying makes trends saturate the market quickly, driving fashion to search out newer looks. If copying were illegal, the fashion cycle would occur very slowly, if at all.

Copying is the engine that drives the fashion cycle. The new bill, if passed, will kill that engine.

Every new fashion draws inspiration from fashions that came before. The entire industry engages in recycling and reinvigorating the past. Recognition of this fact is one of the reasons fashion design remains, after 218 years of intellectual- property law, largely unprotected in the United States. Upsetting the fashion industry’s successful model of creativity makes little sense.

It’s a cure that is worse than the disease.

Ilse Metchek is the executive director of the California Fashion Association, a 12-year-old Los Angeles–based industry trade organization whose members include Karen Kane, Guess? Inc., Barbara Lesser, Design Zone and Hot Kiss. Questions or comments can be directed to info@calfashion.org or (213) 688-6288.