Policy Blog Entries by Sarah Zenewicz

The Copyright Office wants to abdicate any responsibility for determining that a fashion design is sufficiently original to receive protection, and wants fashion designers to litigate instead. The Copyright Office requested an amendment that is included in the legislation that would

[clarify] that the Office does not make judgments as to whether a particular design is sufficiently original or distinctive to qualify for protection…

The Copyright Office has refrained from “taking a position on the overall merits” of H.R. 5055, the bill that would extend 3 year copyright protection for fashion designs. Representatives from the Copyright Office did not attend last Thursday’s fashion hearing, but the Copyright Office did provide a statement. It’s worth a read for a Cliff’s Notes versions of why fashion has never received copyright protection in the US and the history of the Vessel Hull Design Protection Act that fashion design protection would be tacked on to.

The Copyright Office’s justification for the amendment regarding determinations of originality:

Whether a design of a vessel hull meets these statutory requirements is more appropriately determined by a court of law, in an adversary proceeding in which evidence is presented (including the possibility of expert testimony) that permits a more informed determination on these matters.

As we’ve discussed previously, there is little, if any, originality in fashion design, so the chances that a design does not meet the statutory requirements of originality are great. You can’t really blame the Copyright Office for not wanting to determine the originality of a design - fashion designers take so much from fashion history and inspiration from each other that its virtually impossible to determine originality, so why should we expect the Copyright Office to be able to trace every registration application for a dress or jacket or shoes through the history of fashion and determine that its been done before?

H.R. 5055 will put the power to control fashion design, and thus the industry, in the hands of the few wealthy designers who can afford the high costs of litigation. Forcing fashion designers to litigate originality is going to be a slow and costly process, which will decrease competition in the fashion industry as the newest and least known fashion designers will be put out of business by the expense. Designers will either be forced to litigate to prove that a registered design is in the public domain, or will be forced to defend their own designs as not infringing on the registered designs of another. Even if a designer could afford the legal bills, the lifespan of the litigation would outlast the attention span of the fashion industry, so that by the time a resolution is achieved there would be a determination on the rights to use an out-of-style design - hardly a victory and hardly worth the expense.

Are these two dresses substantially similar? That was a question posed at the House Judiciary Courts, the Internet and Intellectual Property subcommittee hearing last Thursday to discuss the proposed legislation creating copyright for fashion design. H.R. 5055 would give designers a three year copyright over a fashion design and would create infringement liability, even for designs that are substantially similar.

Fashion trend analyst David Wolfe testified (written testimony available here), and stressed how difficult it is to determine originality in any fashion design, “it is a craft that is dependant on building on the past, ideas that became before. It is evolutionary.”

Mr. Wolfe said that Oscar de la Renta once said to him, “All we can do is go in and out and up and down over and over and over,” and continued, “I don’t think any one in this room is wearing anything that we cannot trace through fashion history and find its derivation.” Wolfe’s testimony about the lack of originality in fashion begs the question of whether fashion could ever be copyrighted because copyright requires originality.

To answer the above question about the similarity of the dresses, law professor Chris Sprigman said that under the substantial similarity standard that the bill employs, yes, the dress on the right infringes the one on the left. While fashion designer Jeffrey Banks disagreed, noting that one has a capped sleeve while the other uses spaghetti straps, Prof. Sprigman pointed out how bill would create an overly broad copyright:

The substantially similarity standard as its developed in the courts has nothing to do with exact copies, it has to do with taking inspiration, which is what the fashion industry does… this bill makes unlawful what they do.

The bill’s proponents claimed that the fashion industry suffers $12 billion in losses to “piracy” every year. Piracy is a loaded term that was used by proponents of the bill because it evokes ideas of file sharers, piles of DVDs in Hong Kong and counterfeiting. This bill extends far beyond “piracy” and would create infringement liability when designers are inspired by each other or following trends because of the substantial similarity standard.

We don’t know how the piracy figure was calculated, and what goods it includes, but the dresses above demonstrate what could be misguided about calculating the economic effects of fashion copying. The dress on the left is a Diane von Furstenberg and sells for around $400. The dress on the right is from Target and sells for $24.99. They are meant to sell to different consumers. The women who can afford an original Diane von Furstenberg are unlikely to purchase a knock off at Target because the Target dress does not have the same cachet. The women purchasing the Target dress probably don’t have the economic means to afford a $400 dress. If Target cannot sell the dress on the right for $24.99 because its substantially similar to the one on the left, it’s highly unlikely that Diane von Furstenberg is going to sell any more of the dresses on the left.

Earlier this month an industry group of communications, computer and consumer electronics companies as well as trade associations, sent this letter to the Copyright Office regarding the WIPO Broadcast Treaty. The companies and associations who signed the letter are At&T, BellSouth, Broadband Service Providers Association, Consumer Electronics Association, Computer and Communcations Industry Association, Dell, Intel, RadioShack, Panasonic, Sony, TiVo, Verizon, and the US Telecom Assocation.

While the Copyright Office had engaged the group to provide a definition of webcasting for WIPO, the group first provided an outline of its objections to the WIPO draft treaty:

• The scope of the Treaty must be limited to signal theft and should not provide broad intellectual property rights to broadcasting organizations in the signals they transmit
• A term of protection is not needed in a signal theft treaty
• Without narrowing the scope there could be significant intermediary liability for networks
• Limitations and Exceptions should be symmetrical to those provided by contracting parties in their national law to permit, among other things, personal use of broadcasts
• The TPM provision may have unintended consequences, and if left in the treaty at all, should be limited to intentional theft or misappropriation of signals

The group did provide a webcasting definition, or what they prefer to call IP/casting, but stressed that its support is contingent upon narrowing the scope of the treaty. “[W]e only support this definition [of IP casting] if the Treaty is sufficiently narrowed to signal Protection.”

What we don’t want to happen is for the US delegation to use this definition of IP/web casting, claim that it has industry support for it, but totally ignore the preceding two pages of objections and include it in a Treaty that fails to narrow the scope.

This is an illustration of why a copyright for fashion is a really bad idea. I asked my fashionista roommate to name a current trend for me to create an illustration. (I have no fashion credibility because I am currently wearing a pair of Birkenstocks that I’ve owned since high school). I Froogled “Gladiator Sandal” and this is a small collection of what comes up.

First, as Guy Trebay, fashion writer for the New York Times once asked, “Is it shocking anymore to learn that fashion designers don’t design so much as swipe from fashion history?” This is a great example of how all fashion is derivative. The inspiration for these sandals is millennia old. No one can claim to have been the originator of a design that dates back thousands of years, and so no designer should be granted a monopoly over the design.

Second, copying facilitates the rapid growth of trends. If the government gave the first designer who registered a gladiator sandal a three year monopoly over that design and those that are substantially similar, then only that designer would be producing such a shoe and a trend would likely never develop. Trends need the wide audiences that come with copying and derivative designs to develop. Can you imagine this being a trend if only one design was available instead of the dozen shown above?

Third, copying fashion designs benefits designers and consumers. Consumers win because they have a broad range of style choices over a broad price range - the sandals pictured above are priced from $7.98 to $210. Designers win because every designer has an opportunity to capitalize on the “Gladiator” trend. And they benefit from the additional sales that a rapid fashion cycle fuels. When a trend quickly spreads and becomes unfashionable, consumers spend again to get the latest designs, even though their old clothes remain functional.

Attention Hong Kong Boy Scouts! Log on to the internet and make some room on your sash for a new merit badge. The New York Times has a story today discussing the Hong Kong government’s plans to have 200,000 children from nine uniformed youth groups volunteer to scour internet discussion rooms for copyright infringement. The Youth Ambassadors are being asked to send reports of illegal copying to customs officials who will verify the posting and then forward that information to the content industry.

While teaching kids about copyright law is a noble goal, using hundreds of thousands of school children as unpaid internet snitches is a biased and exploitive way for the content industry to achieve it. Why are the Youth Ambassadors stopping at reporting music and video file sharing? If we really wanted to teach them about copyright law then why not have them report incidents of companies engaging in copyfraud and put them on the lookout for the content industry abridging fair use?

At least the Youth Ambassadors have a great logo of a happy computer wearing a jaunty police cap that I think would make a great merit badge:

The Stock Artists Alliance has just released a “Metadata Manifesto”, which calls for a standards in image file metadata. The group explains why the issue is so important:

Without effective systems in place for identifying and managing digital assets, everyone working with digital images is adversely affected. Resources are wasted, opportunities are lost, liability increases and intellectual property rights are eroded.

We’ve previously argued the merits of establishing a visual registry as a way to prevent work from becoming orphaned in the future. But creating standards in metadata is an even easier way for artists to protect their work sooner rather than later.

“This is SAA’s wake-up call to the photo industry,” says David Riecks, Chair of SAA’s Imaging Technology Standards committee. “Photographers need to add metadata to their digital images now, or risk losing future income. Without metadata, they may as well be putting their images in a black hole.”

The groups that have been most opposed to Orphan Works legislation have been those whose information is most easily separated from their work. Solutions like visual registries and mandatory metadata can prevent this problem and help photographers, illustrators and everyone in the digital world help themselves to maintain control of their work.

Editing Hollywood movies for sex, violence, profanity and nudity is an illegitimate business according to a federal district court ruling last Thursday. The major Hollywood studios and a long list of famous directors sued CleanFlicks, Family Flix, CleanFilms and Play It Clean Video for copyright infringement and won when the court decided that the business of commercially producing edited DVDs devoid of “offensive” content violates the Studios exclusive rights of reproduction and distribution. The primary defense of Cleanflicks and the other editors was fair use.

First, the court rejected the companies’ defense that their substantial copying is fair use and that the court should adopt a public policy test that they are criticizing objectionable content and providing socially acceptable alternatives:

This argument is inconsequential to copyright law and is addressed in the wrong forum. This Court is not free to determine the social value of copyrighted works. What is protected are the creator’s rights to protect its creation in the form in which it was created.

Both the studios and the editing companies claimed that the edited DVDs are derivative works. The editing companies claimed that the DVDs are transformative to bolster their fair use claim. The court rejected this argument because for a work to qualify as transformative something new must be added and the editing companies “add nothing new to these movies. They delete scenes and dialogue from them.” The judge then applies this reasoning to say that the works are also not derivative, which is a narrow (and arguably incorrect) definition of what is derivative (since the edited version meets the definition of derivative work which includes “any other form in which a work may be recast, transformed or adapted.”)

The court also rejected the editing companies’ argument that their edited versions do not hurt the value of the studios copyright, and if anything the studios benefit because the edited versions reach an audience who would otherwise not purchase the DVDs. The court rejected this because

it ignores the intrinsic value of the right to control the content of the copyrighted work which is the essence of the law of copyright. Whether these films should be edited in a manner that would make them acceptable to more of the public playing them on DVD in a home environment is more than merely a matter of marketing; it is a question of what audience the copyright owner wants to reach.

This is significant because the court is saying that the studios have moral rights in their content and the right to reach whatever audience they want to reach.

What is noticeably missing from this case is the DMCA. The companies may have violated the DMCAs prohibition of circumventing encryption when the companies circumvented the DVD’s CSS encryption to edit the movies:

It then makes a digital copy of the entire movie onto a hard drive of a computer, overcoming such technology as a digital content scrambling protection system in teh acquired DVD, that is designed to prevent copying.

The Studios didn’t need to bring up the DMCA to get the editing companies shut down and were likely avoiding drawing attention to the scope of the DMCA.

Communications Daily reported on Monday that D.C. technology officials announced at the WCA’s wireless broadband conference that the city will have a municipal broadband network. However, the city has no specific plan for a network. It just has a plan to have a plan. Officials haven’t sent out information requests yet, and questions about what technology to use and how best to implement it between residents, businesses and government are up in the air.

On the other side of the country, Anaheim, California launched its municipal wi-fi service late last week. The fee based service currently covers 10 square miles of the 49 square mile city, and there are plans to finish the network by the end of the year. Anaheim is currently the largest U.S. city to offer municipal Wi-Fi.

NBC Nightly News ran a story last night about how NBC is learning to embrace YouTube.

NBC says that it first noticed YouTube when a pirated clip of Saturday Night Live’s Lazy Sunday video appeared on YouTube’s website. NBC didn’t initially embrace the website, and ordered the video removed from the website (YouTube complied). But rather than continuing to fight it, NBC is learning to take advantage of it because “they didn’t like the piracy, but they sure liked the buzz.”

The television industry is beginning to recognize the internet’s power to reach broad audiences and is learning to take advantage of the marketing potential. On Tuesday, NBC and YouTube announced a partnership. New mediums for content, like YouTube and Google Video, are new possibilities for enlarging audiences. Not only did the Lazy Sunday video get six million streams according to NBC, but run a search on YouTube for the video and you’ll find lots of user generated videos based on the original, which have received hundreds of thousands of hits. NBC couldn’t buy that kind of marketing for its programs, and content providers should be taking note. As we learned from Digital Media Conference earlier this week, the winners of the digital media game will be those who can give consumers what they want when they want it.

If you weren’t sure that fashion thrives on copying and quick trends, check out this story in the New York Times, profiling European retailer Topshop. The retailer managed $922 million in sales in a year, and during peak shopping periods has up to two to three deliveries of merchandise a day.

By keeping manufacturing runs limited, Topshop has created what Ms. Shepherdson calls a “dynamic of desperation,” that has customers feverishly zooming in on sought-after items, enticing them to visit all the time.

Topshop expertly capitalizes on the fashion industry’s ability to set new trends. When Topshop, like other retails such as H&M and Zara, copies runway fashions and offers affordable versions, they help to create trends, drive up demand and increase sales.