Senator Schumer has introduced a new fashion design protection bill called the Innovative Design Protection and Piracy Prevention Act. The bill represents a compromise as compared to its highly problematic predecessor, the Design Piracy Protection Act (DPPA) which would have put 90% of independent designers out of business (and me along with them). The proposed new bill represents a compromise between the AAFA and CFDA. We also have your voices and advocacy to thank for making this possible.
I’ll summarize the changes within the contexts that concerned us most and provide a link to an official press release once it becomes available (the only corroboration I’ve found this morning is a post on Cathy Horyn’s blog). Pending official confirmation, here are the biggies:
1. Design registration will not be required to protect your stuff. Under the earlier proposal, registration would have been required -if not by law- then for all practical purposes to avoid indemnity. Redux: your contractors and pattern makers are not going to refuse to work with you if you haven’t registered your designs. Previously they would have because they could have been sued by someone who sued you however baseless or unjustified their case. Previously everyone would have been required to incur incredible legal costs just to sell anything. Now you only register if you want to.
2. Public domain: nothing in the public domain (current trends, vintage-homage etc) are cause for actionable civil suits. The previous bill (DPPA) was so goosey that any firm large enough to have a legal department could have registered the rights to something as common as a hoodie, amounting to nothing short of a monopoly. No one else could have made one lest they be subject to civil and criminal action. Being forced to buy from a single manufacturer, consumer prices would have skyrocketed.
3. Term of protection: The bill covers the gamut of apparel and fashion accessories like scarves, belts, handbags etc. The period of protection is three years, commencing from the time the item is displayed publicly.
4. Pre-trial proofs: Under the new bill, before a case can proceed to trial, a plaintiff must prove three things:
a. The plaintiff must prove their design had not existed, that it is wholly original. The plaintiff must prove it is “a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs.” The difference cannot be trivial such as a minor variation in a fabric print, nor a concept within the public domain amounting to trend.
b. The plaintiff must prove a defendant’s design is substantially identical, that the defendant’s design is so similar it is likely to be confused with the original. In other words, a line for line copy akin to piracy without requiring the use of an infringing label.
c. The plaintiff must prove that the defendant had the opportunity to have seen the design before it was released for public distribution.*
[While the above pre-trial conditions constitute a high barre, it will provide protections to independent designers who are guilty of nothing more than creative synchronicity.]
5. Damages: Under the proposed new bill, damages have been reduced from $250,000 and $5 per copy to a maximum fine of $50,000 and $1 per copy.
Here’s my take on it: The proposed law is much more limited with the burden of proof resting with the plaintiff. It is fair in that designers with the financial resources to bring suit are free to do so without encumbering independents with the bankrupting costs of indemnity.
Now take a look at 4.c. above regarding public exposure of the design. I’m very curious how influential this law will be in modifying designer’s marketing efforts. If designers embrace the law, it is possible there will be at least two reactions. If given designers do not register their designs, they may delay exposure of their products publicly, meaning there could be less dissemination of pre-season runway designs in the blogosphere and in magazines.
Another possibility; if designers take the law seriously, security at trade centric fashion shows is going to be much tighter. It is likely show costs will rise because registration logistics will need to be refined beyond photographing attendees for legal purposes.
On one hand not being able to market in this way will hamper designers in that they can’t drum up pre-season excitement but it prevents one being knocked off before they’ve had time to get products to the store. A reduction of pre-season marketing by the big houses could be an unintended consequence that benefits independents. If the big houses aren’t spending as much on pre-season marketing, the little guy can cut back too and put their money into improved production and product development. In some respects, this law could turn the clock back to a time when we spent more on our product integrity than our brand image.
Further discussion on the intended and unintended consequences of the proposed IDPPPA bill is here.