Fashion Copyright Legislation Proposed by Senator Schumer May Protect Designers
Mar 23, 2011
By Krystina Steffen, staff In Good Practice writer – March 23, 2011
The four Hollywood stars of E! Entertainment’s “Fashion Police” might have some new targets to go after if New York Sen. Charles Schumer’s proposed legislation for fashion designers, The Innovative Design Protection and Piracy Prevention Act, is passed this year.
The bill was introduced last fall and is currently on the Senate’s legislative calendar.  Viewers of the irreverent yet comical fashion show could get to see which designer stole another designer’s apparel, not just which celebrity is copycatting another. The bill is Schumer’s, 10 co-sponsors, the American Apparel & Footwear Association, and the Council of Fashion Designers of America’s collective effort to make American fashions protected under copyright law. Right now, designers only have trademark and patent protections for logos and labels, thus any design can be copied without much repercussion.
In France, fashion designs are protected under French intellectual property code Article L112-1 and L112-2 as, “works of the mind, whatever their kind, form of expression, merit or purpose.”  Apparel from clothing to shoes, purses, wallets, belts, specialty fabrics, and even the event and designs from one-off fashion shows are protected. In America, fashion is created and rehashed many times over. Crowds go gaga for the singer Fergie in a Marilyn Monroe-inspired white dress,  but think of what could have happened if Marilyn’s dress by William Travilla had been protected back in the 1950s after it became famous in The Seven Year Itch. 
The bill seeks to update the definition of fashion and apparel as not just a utilitarian article, but a creative expression and art form. Apparel definitions in America do include all forms of clothing as mentioned above and eyeglass frames, but not fashion shows. Protected fashions would have to come from a designer’s unique creative processes and have a, “unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.” 
Fashion designers would have protection for three years after making the apparel public. Should someone want to use the fashion design, they could get the authorization of the registered design owner for permission. Otherwise, designers would be allowed to pursue financial damages for infringement if the opposing design was found to be substantially identical in appearance. The infringer would owe the greater of $50,000 or $1 per copy. 
Proponents believe three years is enough time for an expensive haute couture or true fashion design to be protected. They tout that this is the key time when copycat designs are flaunted and even magazines such as Life & Style, Elle, and W show their readers how to get similar red-carpet looks for a tenth of the price from other designers.
Yet opponents of the Innovative Design Protection and Piracy Prevention Act feel the bill is all wrong. They feel fashion has always been an industry of reinterpreting and borrowing, no matter whether the designer was doing haute couture or selling to the masses. “Any claim to originality can be problematic today, as fashion has become increasingly derivative and designers all feed at the same trough,”  said writer Teri Agins in a Wall Street Journal article. Opponents also second-guess how much the fashion apparel will have to be shown as “substantially identical” to be mistaken for a protected design. “For example, does it have to be a line for line, color for color copy?” questioned writer Cherie Yang in the Columbia Business Law Review. 
Others worry that copyright protection would segregate the population and only the rich could truly afford the new creations. The masses would have to wait more than three years to get their apparel fix, and in the meanwhile would probably have to pay more money for run-of-the-mill clothes. And everyone would know how much you spent on your outfit, because they could see if you were wearing something trendsetting or passé. Likewise, only well-off fashion designers and fashion houses will be able to litigate their concerns. Emerging designers would have little means to go after copycats from elite fashion houses or big box stores and thus their creativity will suffer.
Professors Kal Raustiala from UCLA Law School and Chris Sprigman from UVA Law School say copying designs actually creates “more demand for new designs since the old copied ones are no longer special. The overall result is greater apparel sales and thus we have the surprising effect of the piracy paradox.”  They assert that “copying has a major role in democratizing fashion” and “monopolies in fashion designs are bound to lead to a lot of lawsuits”. 
What is interesting is copyright law has progressed over the last half a century, to copyright books, buildings and even boat hulls, but fashion in America remains unguarded. The history behind the fashion design protection movement is laced with trials and tribulations.
In the 1930s, the Fashion Originators’ Guild rallied 12,000 designers and retailers to boycott retailers who copied designs. They issued red cards to wrongdoers, but internal issues started to occur. A lawsuit by the precursor of Filene’s Basement alleged that the Guild violated antitrust laws. Filene’s did not ultimately win, but the uproar turned into a Supreme Court issue by 1941. The Supreme Court decided against the Fashion Originators’ Guild. 
Many industry players did not want copyright protection, including the famous Leon Bendel Schmulen of the Henri Bendel department store. He told the New York Times, “Copying was no danger to the business and a natural consequence of fashion.”  Zoom to 2006 and the Design Piracy Prohibition Act was proposed due to fears of job losses from acts of design piracy and counterfeiting. But this died in committee.
Now in 2011, where everyone can find knockoff purses and clothes not only in Schumer’s beloved New York City, but in normal mall kiosks and online, it is fascinating to see if fashion design protection will finally come to the United States. Lawyers, professors, government officials, designers and their fans stand on both sides of the debate. So it begs the question – must we preserve the art of fashion or our freedom to create, wear, and do what we want with it?
5) http://ipmall.info/hosted_resources/crs/RS22685_110104.pdf, p.7
6) http://ipmall.info/hosted_resources/crs/RS22685_110104.pdf, p.2
7) http://leda.law.harvard.edu/leda/data/36/MAGDO.html#fn71, see citation 71
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