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.
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.
- Rep. Mary Bono [R, CA-45] Contact
- Rep. Robert Goodlatte [R, VA-6] Contact (use zip code 22801)
- Rep. Carolyn Maloney [D, NY-14] Contact
Please sign the petition!