Fashion copyright: the death of us all

Amended 7/31/09: This bill is still in the works. More recent entries are Proposed law to destroy 90% of design businesses and Fashion-Incubator, a good idea while it lasted. We have an active petition I hope you’ll sign. Yes, I know the title is misspelled (the host did that), my title was HR 2196. I’ve been trying to get it changed.

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There’s proposed legislation working its way through Congressional sub committee sponsored by Rep. William Delahunt [D, MA] that will put most of us out of business. Paradoxically, the proposed legislation will “protect” you. Lucky you. Lucky me. Yep, it’s H.R.2033, the fashion design copyright law. Surprised? Most of you who hang out here are informed on IP in the real world but most designers aren’t. If you ask them, they support this legislation thinking it’ll make their lives easy. Design integrity intact, they’ll go onto fortune and fame.

Or maybe not.

Who do these designers think are going to make their garments? If this passes, I don’t know how they’ll find a contractor. Not easily. Not inexpensively. Nope nope nope. Everything is going to get a whole lot pricier, and that includes people starting out; those prototyping out of a spare bedroom. In one fell swoop, this law will put over 90% of us out of business. There are impacts on us beyond the cogent arguments presented in The Piracy Paradox: Innovation and Intellectual Property in Fashion Design (pdf) by Kal Raustiala and Chris Sprigman .

I realize that sounds like a dramatic and exaggerated claim but if this legislation passes, contractors, pattern makers and even retailers will be exposed to liability. Let’s say you have this nifty design that you claim you made up all on your own, with no inspiration from anybody anywhere and you hire one of us to make it up for you and you sell it and make your pile. Then, somebody comes out of the woodwork and claims it is their design, they own it and now you owe them. Problem is, you likely don’t have much money, they’ll want to sue everyone in your production and retail chain. That means me, your contractor and the stores who bought your stuff. After all, we “enabled” you. So, in order to avoid exposure, any contractor, pattern maker, sales rep or store owner -in the interests of avoiding law suits or facing criminal prosecution for dealing in pirated goods- is going to require you to prove ownership of your concept before they’ll have anything to do with it. Minimally, you’ll have to hire a lawyer, pay for searches through a design database of all existing design registrations. I cannot even begin to imagine how long this would take. You thought a trademark or logo search was bad? I have no doubt there’s over 10,000 clothing designs out there for every logo. This will cost a fortune. But, you’ll have to do it. No one will take your work otherwise. And because we’ll have to have our own lawyers to check up on you and draw up contracts, the prices we charge you will at least double. We operate on tiny margins. I charge $50 an hour for patterns. IP attorneys get $250+, I’ll have to triple my prices just to break even. Even with proof in hand, you will have no recourse other than to produce your registered design exactly as sketched. No design changes or iterations in process are allowed, otherwise you’ll have to start all over again. Forget shortening that sleeve, changing the shape of that neckline or tapering the pant leg of that prototype. So what if it ends up looking lame and you have to start all over? That’s the new cost of doing business. Feeling protected yet?


But it gets even worse. What will the retail landscape look like? I can only imagine retail clothing stores will be a tenth of their former size. As a consumer yourself, what range of clothing choices and colors will you have? And dare I mention fit? As it is, shopping for fit entails endless travails and misery. If this legislation passes, you’re sunk. If it’s hard to find clothes that fit you now, in colors and styles that flatter you, how can you possibly expect that with dramatically diminished competition in the market you’ll find it in the future? Do you think you’ll be able to lobby registered manufacturers to make clothing you like? Ha! So much for protecting innovation from new blood. I can only imagine most of us will retire. It’s too much of a hassle as it is. It’s not worth the added “investment” to bring a design to market. The barrier of costs this legislation represents will stifle innovation more effectively than any other possible alternative. We won’t have to worry about protecting innovation if there isn’t any.

Not only is apparel fit impacting consumers but clothes are about to get much more expensive. Because of the costs -which includes longer lead times owing to legal requirements- I sincerely doubt anything will be manufactured domestically; it’ll be all off shore. And then imagine the supply problems. What if the manufacturer who’s registered the common “hoodie” loses their goods due to an act of God or misses a deadline? If you want a work out jacket, you’d better hit the thrift store. One side effect will be that used clothing prices will dramatically increase. One possible outcome is that people will start sewing more of their own clothes since one-offs, not for hire, wouldn’t be affected but forget about sewing up that cute outfit for a neighbor. You could get sued. Maybe lose your house. I guess you could describe one positive outcome being that fewer used garments (or new ones) will be headed for the landfill. Is it worth the trade off? Rather than benefiting consumers, this will create an apparel monopoly for the select few who have the wherewithal to be first in line at the copyright office. In this era of “brands” and The End of Fashion (Agins) coupled with the disproportionate growth of trademarking and marketing, many apparel “manufacturers” aren’t manufacturers at all. They’re BRANDS, with a compendium of products that reflect their image in the marketplace. You can breathe easier knowing the world will become a much safer place for homogenized offerings from brands because no one else will have the resources to manufacture.

Let’s see who’ll become unemployed. Boy, I don’t even know where to start. I can get my electrician’s license, what job will you get? Better dust off that resume. Let’s see…in the manufacturing chain other than you and me, society will have to bear the costs of a bunch of single moms one paycheck away from the welfare office. Contrary to popular belief, small businesses employ more workers than large ones and in spite of the hits apparel has taken in recent years, did you know there are still more people employed in apparel and textile manufacturing than in any other kind of manufacturing? Overnight, at least 90% of those jobs will be gone. Textile suppliers? Gone. Sales reps? Gone. Retail employees? Gone. Sewing machine manufacturers? Gone. Suppliers? Gone. Software companies? Gone. Fashion magazines? Gone. PR companies? Gone. Who will need them? It’ll be a protected market a monopolist can only dream of. This legislation will be beyond compare in its devastation and reach. It will serve to centralize the whole fashion strata into one tiny segment. One benefit, fashion bloggers with their pink pony blogs will have to get a life. Home sewers aren’t off the hook. Your fabrics feed from us. I hope you like muslin. Pocket twill can be a fun fabric too. Better stock up now.

You know that I agree our existing system isn’t perfect, far from it but the proposed alternative is worse. It’s akin to democracy, the worst form of government there is -except for everything else. Or bad like capitalism but would you prefer socialism? That’s what we’re moving toward. Socialized apparel. Boy, if the apparel industry was protected –arguably to its detriment– with quotas, the effects of this legislation will impact everyone from producers to consumers in unimaginable ways. Sure, we can all sleep easier knowing that Nike’s design integrity will be protected, owning warm-up jackets but like it or not, you’ll have to buy from them, “voting” for their questionable labor practices in lesser developed nations or go without. Speaking of, I haven’t mentioned the impact this legislation would have on other nations. Since apparel production targeted for US imports would be affected world wide, what jobs will those people have? And you think illegal immigration is bad now? If you think I’m exaggerating the detrimental affects this legislation would impose, an IP attorney has informed me that the standard for determining the innovation of a given design is not based on our expert opinion. Nope. Every designer would have to have paper to get a contractor because our idea of what consists of a copy differs from the legal definition. The legal definition is based on the opinion of a non-expert, what the average Joe thinks looks similar. No offense, but the average person just doesn’t notice that much. Half the population is below average intelligence and no contractor would stake the viability of their business of what constitutes a copy if the litmus test is determined by John Q Public. So, every designer would need paper. Good luck finding a contractor otherwise. I’ll bet you’re feeling a whole lot better now.

You know what’s weird? I don’t understand why it is that in an era of reduced innovation, that there’s an increasing obsession with IP. What for? Everything looks the same. Traditionally, you prevented knock offs through engineering innovation and quality. Garments with tricky details are hard to copy, too expensive. It’s hard to pattern them and sew them. It’s not worth the effort for such a specialized market of unknown demand. There’s designers like Julian. Nobody knocks him off. And he posts the patterns to his garments on the internet! He’ll even teach you how to copy him –free! Talk about open source. Yet nobody does it. Nobody copies the true innovators. It’s too expensive, the market is dicey. Designers like Julian will be out or continue to design as a formal protest (knowing him), risking lawsuits. In the olden days, you protected yourself through innovation. People are copied owing to inferior product quality or an ageing concept, not the opposite. It was a good idea but poorly executed. Remember when I wrote about Beth Mitchell and everyone jumped to her defense after it appeared Michael Kors copied her, improving the product? In the end, we discovered she copied Bobbie Breslau and even used a copyrighted home sewing pattern to do it! And that reminds me of something else. Young designers -the so called innovators this legislation proposes to protect- are more likely to copy their predecessors than to have their own designs usurped. It is rarely the big bad pirate manufacturer copying a start up but the opposite. Throughout history, the concept of “copy till you catch up” has served as a nurturing, exploratory stage of a designer’s career. You’re too young to have matured as an artist. How can you find your own vibe unless you’ve experimented with examples developed by the masters? This legislation would subvert the growth and development of young talent, not protect it.

And although Christy will tease me for saying so, I’ve got first dibs on velour track suits. And push up bras.

PS. I have one piece of advice for legislators who’d vote to pass this law. Stagger implementation over ten years. There aren’t enough IP fashion attorneys to manage the pandemic of impending caseloads. Or maybe you can tell this to the bill’s sponsors. Who knows, if your story is compelling enough, maybe you could testify before congressional committee.

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36 comments

  1. Malissa says:

    I agree with you Kathleen I’ve already mailed them once and I plan on mailing them again. I know they been trying to do something like this for over 20 years and this is the furthest they’ve gotten. We have to stand up for ourselves, we little guys have a voice, too.

  2. Esther says:

    Who knew there were Senators who wanted to nail the lid shut on a dying US industry.

    I’ll have to look at that plumbing gig again.

    [writing letters to congressmen]

  3. Esther says:

    Oops, they are representatives.

    I can see the lawyers lining up for a money making scheme like what Getty and Corbis are doing now. Can you imagine receiving a demand letter for unauthorized use of a design? Believe me, it will happen.

  4. j. says:

    I’d be more worried about civil liability than criminal liability.

    So, in order to avoid exposure, any contractor, pattern maker, sales rep or store owner -in the interests of avoiding law suits or facing criminal prosecution for dealing in pirated goods- is going to require you to prove ownership of your concept before they’ll have anything to do with it.

    Practically speaking, it doesn’t have to be quite that way. I would put it as “any contractor… will require a rock-solid indemnification from you (the designer) against any and all claims that might arise as a result of dealing with you”. In fact, the sort of indemnification that you might already want to have in place… right now, ignoring copyright, some clothing ornamentation is protectable in the U.S. as trade dress and by design patent, and in some cases an item of apparel may be patentable, so in theory, aren’t you already potentially exposed to some liability?

    For the designer, the indemnification means that not only would she have to keep her own records, but she’d probably want to line up more liability insurance, too.

    I see that the proposed term of protection is only 3 years from first publication or registration, which appears short compared to other terms of IP protection… but 3 years is a long time in fashion.

    … and, note that the bill proposes that protection will be lost if an application for registration is not made within 3 months of the date that the design is made public. Unless there’s some transitional provision to deal with designs that were published before this amendment comes into force (if it does), then they not be eligible for this protection: just new designs, going forward.

    On the other hand, it gives the designer 3 months to see if their design is being knocked off… and if it’s popular enough to be knocked off, *then* they can file the application.

  5. This legislation is absolutely scary. If passed, it could put most of us in the garment industry out of business. Plus, the US is already a sue-happy nation (i.e., the judge who sued the dry cleaners for his the supposed loss of his favorite pants and tried to get $50 milion plus!), that this will yield even more lawsuits.

    The only ones to gain anything are the attornies who will jump on this.

    The problem is you’ve got people who are not creative, but big business-minded, and as we know, the way corporate mentalities go, they are not our friends.

    There isn’t anything “new” in fashion! Doesn’t anyone remember studying the fashion cycle?!? I teach this to my students, and repeat it in every class. What goes around, comes around. Obviously, an attorney, a Senator and the like, would have no concept of this.

    When it’s an out and out blatant copy of say a print (for example the Louis Vuitton lettering and designs) and someone uses that EXACT logo and print and wants to call it their own, that’s one thing.

    But who hasn’t been inspired by something they see another designer having created, and then using that inspiration to create something new? I have my students look at various designs and ask them to change it, modify it, to make it their own if they had to and using their own creativity to do so.

    And what about the other countries around the world? Is this something the so-called smart Senators and other politicos are going to try to enforce globally? Don’t they have enough to do on their plates than to pull this on a group of fashion people who are still trying to keep the industry alive in the US?!?

    Ridiculous, and I’ll be forwarding this information on to fellow designers and on to my students so they can see what the future holds for them if they don’t do something about it now.

  6. Big Irv says:

    Why doesn’t this group of politicians dedicate the same amount of effort trying to further aide the onslaught of knockoffs coming from China and other countries ? Not just the apparel and handbag knockoff artists, but the guys bringing in fake pet food, pharmaceuticals, extension cords, toys……………………….

    Does Rep. Delahunt know of the vibrant textile and footwear industry that once operated in Massachusetts I wonder ?

  7. a says:

    I’ll be the first to admit that I really don’t know a whole lot about copyright law and the proposed legislation – I’m definately not a lawyer! However, it is my understanding that pretty much every new creative work in any field is currently protected by copyright *except* for fashion. Music, architecture, artwork, computer programs, and products outside the fashion industry are all covered by copyright. I personally don’t feel like those industries are on the brink of extinction, lacking new innovation, or prohibitively expensive for consumers. I’m not convinced that the doomsday senario described above would happen in the fashion industry, when all these other industries that have copyright protection continue to thrive.

    I don’t see Nike being able to claim ownership to the design of all jogging jackets, for example. Their copyright claim could be for a jacket with a certain specific shape, specific fabrics, specific trims, specific colors in specific locations, etc. If the new legislation is anything like current “everyday” copyright law, somebody could still copy Nike’s jacket, but if they change around a certain percentage of the details, the design becomes a *new design* and Nike can no longer claim ownership… as long as the new design is not easily confused with the original.

    A similar example would be to say, Hallmark can’t prevent other companies from creating greeting cards. Hallmark can prevent other companies from creating and selling greeting cards that have the same specific illustrations and text as one of their own.

    My impression is that this law would help prevent ABS from copying Oscar gowns and selling them the next day, for example (if the original designers choose to sue him). I’m talking about direct copies with specific details that are designed to imitate the original as closely as possible. This is stealing. If I wrote a book, I’d be upset if someone photocopied it and sold it as their own; if I designed a dress, I’d be just as upset if someone reproduced and sold my *exact* design. There’s a difference between copying and inspiration (not much is truly new under the sun), and I believe this can be recognized under the law as it is in other industries.

    I don’t think it would be possible to enact a law that creates monopolies on broad groups of clothing. I don’t think velour tracksuits and push-up bras, as a general group, could be covered by copyright. Only an individual product with very specific, recognizeable details could be copyrighted. Like heavy metal music isn’t covered by copyright, only individual songs. Pizza restaurants aren’t covered by copyright, but Pizza Hut’s specific roof design is. I could go on…

    Finally, I don’t agree with your point that we’re living in an era of reduced innovation. I simply don’t see it that way.

    But anyway, I do love your blog, it always has useful information and lots to think about!

  8. J C Sprowls says:

    Thank you for bringing this to the forefront. As Entrepreneurs, we’re often running in different directions and don’t always know these things are going on in the background. This is a valuable service to the DE community.

    I’ve read the bill. I think the language is much too loose and that all interested parties should object to it for that reason alone. The concept may have merit. But, I feel the language in the draft is much too immature to allow to move through the legislative system. The berth of interpretation is simply too wide to trust to a layman. Yes, in this case, even a highly-qualified legal professional is a “layman” – they don’t know our industry and livelihood.

    The current system is not perfect; but, it is workable. This bill, if interpreted on the detrimental end of the scale, could be the undoing of everyone who is not Levi, LV or DVF. This is my objection.

    Speaking of which, the cases these designers brought forward were discrete events that could be judged. Personally, I agree with the judgments in the majority of those cases. But, they were no call for “blanket” legislation that only serves to complicate lives (i.e. extra hurdles, extra expenses, longer cycles, etc).

    I see your POV on all the arguments you raise, Kathleen. I agree that if interpretation were categorically poor across the board, these worst-case scenarios might become reality. Myself, I generally disagree with legislating “good manners” and could not bring myself to support such a bill.

    The subtext I hear in all of these articles is that large firms are moving to “level the playing field” by “monopolizing the market” or “eliminating the competition”. Needing to do either is an expression of fear. If these firms are, indeed, innovative, they’re so in-tune with the market that being copied should be the least of their concerns. They’ve run out of gas, apparently, else they would simply hunker down and turn out more innovative products to get further “out in front” of the packs.

    All artists know that Fear extinguishes Creativity and Competence (to some of your points). If business decisions are being made out of Fear (or, any emotional stimulus for that matter), those decisions will not solve long-term issues. The probability is high this proposal will “rot on the vine”. But, it’s in our best interests to carefully review the bill, understand it, and ask our Congress-folks all the pointy questions (as you raise).

    Frankly, I think our letters should include our statement of approval/disapproval (wherever each of us stands) in addition to the concerns and questions we would need to have answered in order to get behind this initiative. Even letters of approval need to ask the pointy little analytical questions. This is our livelihood. Each of us should evaluate whether it is permissible to allow our silence to lend consent.

  9. kate says:

    Imho copyright and patent laws keep passing for the misuse and benefit of big corporations not lone innovators. It’s not a new thing it’s been happening for a while. I remember how shocked I was reading The Last Lone Inventor about the man who invented television (Philo Farnsworth,) and how big companies (like GE) would strong-arm inventors out of their patents in order to stifle competition and establish monopolies.
    Fast forward to today and things like medicine patents who benefit big pharmaceuticals and are responsible for millions of deaths (AIDS in Africa) or smaller ridiculous things like extending copyrights to enable Disney to hold on to Mickey Mouse and you get the full miserable picture.
    The difference of course is that now (as opposed to the 30s and 40s) we have the internet and people are fighting back. There’s the Open Source movement and the Electronic Frontier Foundation (www.eff.org) and thousands of people doing stuff to fight the harm caused by these kinds of legislation, and while these mostly deal with electronic stuff I think the principle remains the same across the board.
    Imagine if someone had patented the damn wheel. Or wine-making. Or the side bust dart to bring this back home.
    On another note I was just reading yesterday that the UK refused to extend copyrights for books any further recognizing that it would harm not benefit authors.
    And to put this back into the fashion context: the reasons people buy an article of clothing are far more complicated than design.
    Also I’m skeptical as to how harmful knockoffs are to a company like Louis Vuitton’s profit margins (a)increased visibility and prestige for their product, people want to buy it so much they’d settle for a copycat product and b)people who buy the knockoffs wouldn’t buy the originals since they couldn’t afford it.)
    If anything these knockoffs mostly are a danger to the environment (I can imagine them, in the thousands, no, millions, being produced in China) but that could be said of all cheap mass produced products (like my waffle iron whose handle melted after one use. Thank you China! My landfill thanks you!)
    Sorry waste annoys me as much as unjust laws. I’m with you all.

  10. j. says:

    I wonder whether, er… (shipbuilders…? boat builders? excuse the lack of appropriate terminology) protested the same way when vessel hull design was added to the Copyright Act 10 years ago. (That’s where this bill proposes to add the fashion design.) I have no idea of the rate of innovation in that field, and somehow I doubt it’s comparable to the output of the fashion industry.

    I’m a little jaded about claims that the introduction of some kind of intellectual property protection will chill innovation or business. For years, now, we’ve had a lot of hand-wringing about software patents, business method patents, patent trolls, and patent reform. Is patent reform needed? Sure, it is. Is it needed because patent trolls are brandishing weak software patents and choking off innovation? Well, no. That’s the claim, but it’s seldom, if ever, backed up with hard data. Ask the people who queued up for an iPhone if innovation is dead or if patent wars have stalled the introduction of new products.

    We’ve had copyright for decades (or, on a more global scale, for centuries). The copyright term in the U.S. is quite long. Does it prevent people from publishing books about unseen wizard schools? Ask the people queuing for the latest Harry Potter book. (Here’s the ref for those who don’t get that joke.)

    And don’t forget that the registrant’s case isn’t built on the fact of registration alone. Their entitlement to registration would be attacked in a dispute. Their registered design must be original, itself; that language is already built into section 1301, and is even explicitly defined in (b)(1): “A design is ‘original’ if it is the result of the designer’s creative endeavor that provides a distinguishable variation over prior work pertaining to similar articles which is more than merely trivial and has not been copied from another source.” The problems that dog the new DE will have the same effect on the existing manufacturers who merely tweak their lines from year to year.

    That doesn’t mean that I think that this legislation is needed. All I’m trying to say is that we don’t need to leap to this conclusion that it’s going to chill innovation.

    It also seems to me, by the way, that for those few designs where copyright may apply in the U.S., this legislation would remove that protection unless those designers were eligible to register their designs. And then, their rights would terminate a lot sooner than they had expected.

  11. Kathleen says:

    I don’t know that J. mentioned that she is an attorney. While this makes her comments valuable, she isn’t an uninterested party -although she is unlikely to gain immediate impact from proposed legislation because she practices in Canada :). Still, as the US is the number one importer of Canadian goods and considering the transnational nature of apparel and similar barriers to the importation of designated “pirated” fashions, there is every reason to expect this legislation will affect all US trading partners -and their attorneys.

    J:
    There are many more companies producing apparel and sewn products than there are cell phone manufacturers. Likewise, apparel producers put out a lot more skus than cell phone producers which btw, are most readily protected by patents. For similar reasons I discount books. Most people –and I do mean most (pdf)- never read another book in their lives once they leave school. There are infinitely more items of apparel produced annually than books, software and cell phones combined. For given segments, protections already exist although admitedly, the engineering component of manufactured hard goods is easier to quantify which encourages innovation. The definition in soft goods is as soft as the goods.

    Reiterating Costs: Costs to producers and consumers will increase in three central ways. These costs will negatively impact innovation, decreasing the number of new designers entering the market:

    1. Design searches will be costly and time consuming for designers. I refrained from analysing how registration will affect the iterative design process as well as product development and sourcing but I’m reconsidering the option. From this standpoint alone, the legislation is untenable.

    2. If questionable lawsuits are filed everyday on the flimsiest of pretexts, it would be delusional to think apparel would be magically immune.

    3. Contracting parties will be obligated to expand both their insurance coverage and their use of intellectual property attorneys. Our margins are razor thin. Our costs -passed along to designers and by extension, consumers- will increase. These costs will increase even if we are never sued. Lawsuits will be a dramatic chilling effect. As I said, we’ll just abdicate and retire. The industry is greying, most contractors are older with no one of equivalent caliber replacing us. It’s easier to retire. Insurance or not, there will be a whole lot less contractors to pick from. You’ll pay what they ask or go off shore -regardless of the contractor’s social responsibility compliance. Like I said, nails in the coffin of US domestic manufacturing.

    Similarly, innovation will be limited in another way. In much the same way that speculative web domain registrations have locked up the market, we can fully expect design registrations from parties who have no intention of producing given products. Design registrations will become a revenue source for applicants in two ways, one being licensing. Second are questionable lawsuits by parties anticipating that “offending” parties will settle out of court rather than enduring the costs of litigation and negative publicity (most are settled out of court). OUr reputations are everything. One slight suggestion we’ve been unethical and we’re cooked. No client will trust us.

    Lastly, just because the wheel hasn’t been patented doesn’t mean common apparel items won’t be copyrighted. Spurious applications are granted patents everyday, many have been detailed here. Most recently, someone patented the bulleted list.

    Reiteration of WHO decides what is similar, novel or unique. WE don’t get to decide: (from the california fashion assoc letter -pdf)

    Current law leaves the “ordinary observer” or lay person as the designator of guilt or innocence in deciding if one design looks like another or if there is “consumer confusion”. Most IPR law suits are settled out of court, for reasons of adverse publicity, time, and the lack of clarity of existing laws. At this time, if a case does go to trial and the judge sides with the plaintiff, the defendant must also pick up the costs for lawyer’s fees on both sides as well as the cost of the settlement.

    You all, the experts, DON’T get to decide what is different. It’ll be someone who is like your spouse -the same guy who doesn’t even notice you’ve coloured your hair, or are wearing a new dress. It’s your garbage man, computer or appliance repairman, a plumber or electrician who couldn’t care less. Another thing, based on my years of experience, even designers are poor judges of similarity!

    I’d also like to remind people, that as with books, software and engineered products, we have existing protections. I am not suggesting the existing system doesn’t stand improvement but I am saying this legislation would limit innovation and dramatically increase costs for producers and consumers. This law is not the solution. I am saying this in the context that any of you would be hard pressed to find another person who is more supportive of entrepreneurs than I am.

  12. j. says:

    I’d expect that the benefits to me, practically speaking, would be minimal except for the goodwill involved in referring Canadian clients to U.S. attorneys .

    If you’re going to consider how registration will affect the iterative design process, I’d look forward to seeing your conclusions on the proposed term of protection. In this draft, the DE could look to designs at least 3 years old (from date of first publication) and work from those to develop her work; basically, she’d need to create a 3-year blind spot, which seems rather long.

    The point about cybersquatting suggests that some kind of use in commerce requirement be added to the bill; if there’s no bona fide attempt to commercialize the design within a set period of time, then the term of protection expires.

    Also, the wheel was patented in recent memory. It was a demonstration of the utility (or lack thereof) of Australia’s then-newly-introduced innovation patent system, which granted “innovation patents” for innovations, without examination. A patent attorney did, indeed, file an innovation patent application for the wheel, and got it. Of course, as a result of the ensuing publicity, the innovation patent was revoked. The innovation patent wasn’t enforceable, though; to be enforceable, the applicant would have had to spend more money, and have the patent examined for the usual criteria of patentability. (This suggests that perhaps something similar ought to be implemented if this kind of fashion design protection goes through: if you want to enforce your registration, you need to pay for some kind of examination and disclose all your sources to the Copyright Office.)

    In the end, I’m coming around to the view that this bill, as it stands, shouldn’t be passed. Not because I think it will stifle the industry (but you know way, way more than I do on that subject), but because that protection probably isn’t necessary to encourage industry.

  13. J C Sprowls says:

    I agree that the verbiage appears to provide a “3-year blind spot”. But, the language is too loose and could be interpreted any number of ways. This is the part I think has merit; but, is too immature to present through the legislative system.

    I think protecting a timeframe in the marketplace is appropriate as a “Fashion Copyright”. But, there are collateral affects of implementing such a system, namely all those things Kathleen has enumerated (e.g. heavier ideation process, etc). “Owning” the market for the first 3 years is also (frankly), egotistical. 3 seasons is more representative of what *really* happens in the industry, currently.

    I also don’t see how an economy product detracts sales from a designer product – they’re two different markets with drastically different distribution channels, marketing methods, target markets, etc. In other words, you wouldn’t find a Forever 21 hanging next to a DVF. And, the woman specifically shopping for a DVF is not likely to shop in the same store the Forever 21 is hanging in. This situation only happens at the magazine editor’s office – not in real life.

    My POV is this: “how long have you had exculsivity in the marketplace?” “how much longer do you need exclusivity?” “why do you need a longer term of exclusivity?” “show me your sales numbers… oh, that style is already slumping … stop bitc*in and create something new!”

    In order to be a competitor one must play in the same sandbox doing the same or similar thing (or, similar enough to create that nefarious state of “confusion”). “Making clothes” is just too broad a category that I would feel uncomfortable letting a layman interpret. This is verbiage that needs to be addressed in the draft.

    Coming back around to a heavy ideation process:

    I work in a software company during the day. My team specifically focuses on innovative solutions. It costs A LOT of money to just research, validate and ideate a concept. Then, when the concept is articulated (about 3-6 mos of time), our IP attorneys have to research: a) *if* a patent for such product already exists, b) whether the owner of the patent has the resources to enforce it, and c) whether we need to buy the the owner of the patent (licensing is too messy).

    It takes about 10-16 months from the time we conceive of a concept until we get a response from legal to proceed with detail analysis, talking with customers (drumming up interest in the finished product along the way) and spec’ing/designing the solution. From there, it takes anywhere from 6 to 16 months to build a beta product for limited distribution, and another 6 to 12 months to package it for general distribution.

    Frankly, I think we miss the market opportunity because the cycle is arduous and much too long. The reason being that the legal and development departments do not share our same interests. They are expenses for us, not a partner accountable for the profitability of the product. As a result of these differences, we end up releasing a product into the market maybe 3 or 6 months before a competing solution appears, so we loose the “jump” or “competitive edge” very shortly after entering the market.

    This legislation would do the same for the most seasoned of design firms with deep pockets. And DEs (to whom this blog is targeted) are pushed even further back.

  14. Catherine McQ says:

    I wondered what problem the legislation is intended to fix. A year ago, when Jeffrey Banks testified before the House Subcommittee on Courts, the Internet and Intellectual Property, he cited the copying of a Marc Bouwer gown worn by Marcia Cross at the Golden Globes and a Zac Posen gown worn by Felicity Huffman at the Academy Awards. Mr. Banks said that such copying “prevents Marc Bouwer or Zac Posen from being able to develop the affordable ready-to-wear line of their own designs.” Really?

  15. Oxanna says:

    This sounds like pretty horrible legislation. I agree that there’s obviously a problem with knock-offs, but the solution is not a law like this. Fashion design, after all, isn’t all it’s cracked up to be. Rarely (if ever) are designs completely original – they take their influences from history & current society. Besides, the makers of knockoffs really don’t care – they’re already often breaking other laws.

    This smacks heavily of the record labels vs. the pirates – trying to clamp down on something that they should have been adapting to long ago.

    Please pass the word along, folks – your blogs, your friends, family members (begging your parents to make a call nets you 2 people right there ;) – every little voice counts!

  16. Jess says:

    Since I am a wannabe fashion designer who makes my living as a type designer… In the U.S. my type designs have no copyright protections, the software itself does. So for instance someone could print out one of my typefaces and redraw it and it would be perfectly legal, on the other hand they could not change my font file a little bit and then use that. I hope I never get copyright protection for my type designs. There’s no need for it and the possibility for lawsuits wouldn’t make it worth it. Although I doubt it would be other indie foundries after each other but big names after the little guys. In the 10 years that I have been designing type I have had no problems with anyone ripping off my work. There have been issues with trademarks. For instance I used a trademarked name because I didn’t know someone was already using that name (and about 4 other type designers had been using that name also). I got an email asking me to please stop using the name or else and so I changed the name of the font, no problem.
    I’m somewhere in the middle on this issue. I don’t see the doomsday scenario that Kathleen sees but I think if this law passes that more lawsuits would be on the horizon and it would make life for people in the business miserable.

  17. Kevin Carson says:

    This is awful. Unfortunately, something similar is going on in several industries simultaneously. There’s the attempt to kill off satellite radio by making broadcasters pay the same royalties as those using the radio spectrum. There’s the requirement that small livestock operations implant RFID chips in their animals.

    Along the same lines, Wal-Mart recently attempted to pilot economical employee health clinics headed by Physicians’ Assistants, and the AMA is trying to shoot it down: PA’s should only be allowed to work with an MD holding their hand, they argue, because of “public safety” concerns.

    In every case, the big operators use the regulatory state to impose costs on the small ones and shut out competition, in the name of some phony “public interest” concern. The public interest is the last refuge of scoundrels.

    J, so-called “intellectual property” is seldom if ever necessary to encourage innovation. F.M. Scherer did a study on the economic effect of patents and found that over 80% of product and process innovations would have been developed for the sake of remaining competitive, even without patents.

  18. GrimReader says:

    Rationalizing the Oldest Industry by Force

    When IP protection comes along, the industry will get vertically integrated. The companies that secure patents first will hold something over on first their competitors, then retailers. Retailers will not be able to sell something from a producer who…

  19. Christy B. says:

    My brain is too tired to completely digest this post, but I will say that you can have the velour track suits but I hope they’re not worn two sizes too small with the push up bras!

  20. Lourdes Souto says:

    As someone who has had a complete collection ripped off by the Indetex group ( Zara) all the way from the Color of the tissues to the tissue to the model, Not just one piece but a whole theme of 12 pieces of clothing. I can only express my support for any measure that stops the outright thieving that goes on. I have no truck with people who claim that designers just have to move on and develop a new collection, In my case the Collection was stolen in September & was in their shop windows opening the Summer season 5 months later, Just when I was delivering to my clients.
    I develop my collections from the ground up, designing the Embroidery or the prints, then developing the clothes, trying to get the right look. There is an enormous amount of time invested in this venture. I know I haven’t stolen any ideas & I have plenty of back up to prove the development of my creations. Believe me it won’t be the big businesses that will benefit from legislation stopping theft of creations, it will be the small creators & small designers who will benefit.

  21. Kathleen says:

    Lourdes, based on your description, it sounds like existing law already covers you. So go get ’em!

    Related: unfortunately, both existing and proposed legislation is a civil matter. As it is, small producers can’t pursue infringement lacking the financial resources. The new law wouldn’t change that. Iow, justice, either way, today or tomorrow, is only for people who can afford to pay for it.

  22. Lourdes Souto says:

    Below is a link to a UK Newspaper and its article on copying by the High Street & the effect an EU law has had on protecting the creations of designers. An interesting note is that EU designers are afforded 3 years protection WITHOUT having to register their designs.
    The effect if the Law is now starting to be felt by the thieves, & they now have no alternative but to create their own designs. This will be a bonus for everyone involved in the fashion industry.

    Why designers are declaring war on highstreet homage
    http://www.telegraph.co.uk/fashion/main.jhtml?xml=/fashion/2007/08/01/efcopy101.xml&DCMP=ILC-traffdrv07053100

  23. J C Sprowls says:

    Just for grins, go check out the pics in the Telegraph article. It’s interesting to see what a reporter (i.e. a layperson) considers to be a knock off (there are some in there).

    Is this an example of the type of interpretation we open ourselves up to? Does a product in the economy sub-market really pose a threat to the designer sub-market?

    Lourdes,

    Your situation sounds painful. Based on your description, i.e. them delivering at the same time as you, I’d feel right pursuing justice.

  24. Annie says:

    Passing that law won’t make it any easier to get justice if we don’t have the money to pay for a lawyer. It will only help big companies, not us little guys. I’ve spent hours and hours researching trademarks. I can’t afford a lawyer to do a search if something similar to my designs is already registered. I’m worried that a big company will see my designs and register them before I can. DVF was bragging about her legal department but I don’t have a legal department. Then I can get sued for making my own designs when I can’t hire a lawyer to defend myself and it won’t matter it was my idea first because it’s like patents because it doesn’t matter who invented it first, it matters who regestered first. It isn’t fair. This law will only make big companies more powerful. They can steal all our designs and get away with it because they have the money and lawyers. Lawyers are going to get very rich off of us. DVF hasn’t had an original idea in decades. She wants to make sure we don’t either.

    I’m not sayig your a liar but how could zara copy you if they had it in the window before you sent your clothes out? Zara is good but I don’t think they are mindreaders. If they did copy your fabric and embroidery, you can sue them now without the new law. If you can’t afford a lawyer, the new law won’t make it easier for you to pay for one.

  25. Lourdes Souto says:

    Annie , it was very easy for Zara to copy this theme.
    I used to specialize in selling to department stores & I had already made a sale to Indetex (Zara) the year before. I then presented in September a Couple of Collections to them, they selected one of the collections & asked me for price quotations & what was my production limit. After I had consulted with suppliers & Banks for financing I contacted the buyer (Adolfo V***e) at that moment he informed me that “ We are not interested in this theme any more” 6 Months later they opened the summer season with that collection. This collection was not an embroidered Collection & under the old Spanish Laws I did not have a legal base to successfully attack them . At present & with today’s new EU laws I do have a base to attack them if they do steal any of my designs.
    In the European Union designers are covered for 3 years without registering their designs (more if they register) proof of ownership is easy using digital copies of the patterns Time stamped by a Notary.
    Ps
    It is very easy for inditex to copy whatever they want; they go to all the fashion shows & have contacts with all major producers in Aisa. Normally summer wear is presented at the end of August; this leaves them plenty of time to copy.

  26. Eric H says:

    From Mises Economics Blog, Revisiting some problems with patents:

    “the pair has compiled a tremendous amount of economic data regarding patents and companies who patent. … Meurer & Bessen’s bottom line: On average, the patent system is bad for innovation. They agree innovator firms often profit from their own patents. However, the pair’s data shows that the innovator firms are also the ones most likely to be targeted by other patent holders. (litigation, licensing, etc.) In today’s system, they find, the disincentives created by other people’s patents outweighs the incentives to build your own portfolio. I.e., on average, the patent system discourages innovation.”

    It’s an arms race. When you have a knife and you don’t see anyone else with a knife, you might be tempted to start a fight. But then other people with knives show up. Then the guys with guns show up.

    “The American Association for the Advancement of Science recently conducted a survey on the effect of patenting on the sciences. The results are frightening: 1/5th or more of all research projects in the United States are being chilled by patent holders. The sheer amount of research being canceled because of licensing issues is astounding, but at the same time many of these researchers hold their own patents and therefore contribute to the problem.”

    hattip: Organizations and Markets

  27. Wonderful commentary on the ever snarly world of influence and ownership in the creative realm. I appreciate your point of view Kathleen and am glad to have found your blog. My first visit here. I’ll be back…

  28. Amy says:

    Is it true that Diane Von Furstenburg, Zac Posen are among the New York fashion elite supporting this bill? I was under the impression that this mainly came out of NYC. As California designer that is still making my leather bags right here in L.A. I can’t help feeling like this is all coming from a place of abject cluelessness on the parts of the uber-high end designers who support it.

    I think you are right, it give’s the upper hand to companies that already have the upper hand. I’m just not sure who is supposed to be protected here. I know plenty of smaller designers that have had designs appropraited by larger companies but those small guys still won’t have the dough to do anything about it even with a law in place. As far as the overnight knocking off of $30,000 Oscar gowns, I just have to wonder, if companies are really actually losing money this way. It can be argued that it makes the original more valuable. AND if everybody want’s a knock off of your line what does that tell you? You need to knock yourself off. More and more “exclusive” high end lines knock themselves off by liscensing to cheaper retailers. Vera Wang has a fall line at Kohls, Rafe, Libertine, Mizerahi and gobs of other designers are working with Target, Chip&Pepper has a denimn line a JC Penny (or was it Sears).

    This seems to be a better solution than creating sticky legislation that could wind up keeping a lot young talent out of the business.
    The way people love to sue each other here in California, well I just shudder to think about it.

  29. Lesley says:

    Call me cynical but the idea that any idea is totally new after centuries of innovation seems unlikely. Last year I designed a “totally new” concept skort with rave reviews and lots of advice to copyright. Even IF my idea had actually never been thought of before (because an angel decsended from above to give me this unique inspiration) and I spent thousands to copyright it, I would not have the money to pay attorneys to search for copyright infringement violations- duh! As far as I know, all it takes is minor changes to get around that anyway. On to other things I say.. I’ll just add this new legislation to the slew of giant legislative warts I am dealing with and will prepare more letters…sigh

  30. Richard says:

    That kind of greed makes me angry… I HATE hunger for power and money. It is a destroyer. Thank God I live in Australia!

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