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We have heard that fashion designers and their lobbyists are already on the Hill seeking copyright protection for fashion designs. You may recall that in the last Congress, a bill introduced by Congressman Bob Goodlatte that would have given fashion design copyright protection for three years died. We opposed the bill and wrote about the issue a lot last summer. Here and here are just two good posts about the issue.
Advocates for fashion copyright protection would be well advised to read a front page article that appeared earlier this week in the New York Times (registration required). The Times reports about Levi Strauss' efforts to protect its trademarked "intersecting arch" stitching on the back of its jeans, as well as its trademarked "Levi's tab," a folded piece of cloth sewn into the vertical seam on the left hand side of the back pocket (one company even placed a label on the right hand side just to avoid a lawsuit). According to the Times, Levi Strauss is now among the 10 most litigious trademark holders in the country, coming in below Lorillard Tobacco and above Baskin-Robbins at number 7. The company has been successful in many of these trademark infringement suits, which have been brought against companies such as Von Dutch, Jones Apparel and Fossil.
There are two lessons to be learned from the Levi Strauss litigation. The first is that Levi's success in trademark infringement litigation demonstrates that trademark law offers more than adequate protection for those fashion designers concerned with consumer confusion. The second lesson is that should this protection be broadened to include the look and cut of fashion, the litigation floodgates will open even wider than they already are, with companies like Levi Strauss, which are not thriving in the marketplace because they failed to change their fashion business model (to exploit what the Times calls "the latest $200-a-pair denim craze"), using copyright litigation as their cash cow. This would cause chaos in the fashion industry, which has historically thrived because of copying, and would have negative consequences for those consumers who cannot afford to pay thousands of dollars for "original" fashion.
Denim jeans are a good example to use about the unintended (or perhaps intended) consequences of fashion copyright protection. Would the use of denim (or particular color or style - stone washed) be protectable? How about the five-pocket (with the little pocket in the front) style? Or the use of rivets or a particular kind of rivet? Button fly jeans? Use of zippers, jewels and the like as adornments? H.R. 5055 would certainly appear to include all of these elements.
The article has plenty of quotes from annoyed jeans designers about Levi's tactics. One of those manufacturers, Michael Silver of Silver Jeans, is quoted saying what many, if not most, fashion designers believe - that copying is an inextricable part of fashion design, and that it helps, rather than hurts, a design's value in the marketplace:
Everyone is borrowing from them, it's inevitable....[t]hey should be happy that people are copying them.
Mr. Silver and like-minded fashion designers need to get active in Washington very quickly to save the fashion industry from their misguided protectionist colleagues.