The Innovative Design Protection and Piracy Prevention Act: Litigation, Uncertainty, and Economic Ha

[Updated 7/18/11 for clarification.]

“Creativity is the art of concealing your source.” – Coco Chanel

Fashion is a thriving industry in which copying plays a major role in driving new styles and for which copyright protection is unheard of. Copies, trends, and imitations quickly saturate the market, driving designers to new styles and consumers to new purchases each season.

Nevertheless, some well-intentioned yet misguided designers and policy-makers continue to advocate for legislation that would extend copyright protection to fashion designs. This morning, the House Subcommittee on Intellectual Property, Competition and the Internet held a hearing on H.R. 2511, the “Innovative Design Protection and Piracy Prevention Act,” or ID3PA. Testifying before the subcommittee were Lazaro Hernandez, designer and co-founder of Proenza Schouler; Jeannie Suk, Harvard professor; Christopher Sprigman, UVA professor; and Kurt Courtney, government relations manager at the American Apparel and Footwear Association (AAFA).

ID3PA would extend copyright protection to articles of apparel that “provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.” Proponents of the bill argue that the language is sufficiently narrowly tailored, striking the perfect balance between preventing knockoffs while not chilling creation in the industry.

So where is the harm?

The United States has a legal culture of excessive civil litigation teeming with lawyers seeking out their next case. Compound that with the fact that most members of a jury don’t know the first thing about the fashion industry, and we’ve got a problem on our hands.

Professor Sprigman pointed out several possible outcomes of ID3PA that would be a living nightmare for any designer: rampant cease and desist letters, inconsistent rulings creating shaky and shifting legal ground, legal consultations before sending designs to production, etc. Most disconcerting of all, however, is the banks’ wariness of ID3PA’s outcomes. Kevin Sullivan, Executive Vice President at Wells Fargo, is quoted saying:

“While the intent of the legislation seems to be well-meaning, the reality of implementing this type of legislation is that it is very difficult to prove the originality of a given design in the apparel industry. We believe that it would force lenders to the apparel industry to become arbiters of fashion… While we support the protection of intellectual-property rights in general, this law would likely lead to a host of unintended consequences for the industry, not the least of which would be an increase in legal costs faced by apparel manufacturers.”

Lazaro Hernandez of Proenza Schouler, who was in favor of the bill, pointed out in his testimony that over 85% of design firms are small businesses, arguing that the ID3PA would prevent the piracy that harms their business. Copyright protection would be a huge burden on independent designers and small firms by forcing them to add legal costs to already-tight budgets. Moreover, there are unanswered questions regarding retailer liability that would burden independent designers while advantaging the already-established, big-name brands. Retailers would be hesitant to take on new designers without legal assurance that the products aren’t infringing.

Despite best intentions, it is very hard to instruct a jury of non-experts to tell the difference between something merely “inspired by” and a copy of another design. In fact, Ranking Member Watt (D-NC) challenged professors Suk and Sprigman to come up with written jury instructions. There were even contradictions among the witnesses themselves over what ID3PA would cover and what it wouldn’t. Hernandez wants to protect Proenza Schouler’s PS1 bag, a leather messenger bag inspired by vintage school bags, while Kurt Courtney of AAFA insists that the novelty standard is so high that “it’s not going to cover anything in this room,” but only the most original and unique designs.

Congresswoman Lofgren (D-CA) made a valid point by raising the question of fashion copyright trolls, to which the answer is, of course, yes. If ID3PA becomes law, there will be lawyers whose sole purpose is to seek out anything a jury might possibly consider infringing.

ID3PA is unnecessary

Through trademark law, designers are already protected from the production of counterfeit versions of their designs. Designers can also copyright the patterns on fabrics and textiles, as well as incorporate trademarked logos into designs. Two-dimensional sewing patterns are also copyrightable. Additionally, parties that have been involved in cases of knockoffs that do not fall into one of these categories have reached agreements in court.

Moreover, consumers care about brands and authenticity, and they are willing to pay for it. They know when they are buying the similar $14.95 fast-fashion version and when they are buying the $400 “original”.

There’s also a social aspect: copycat designers are “second-rate” and it’s not “cool” to buy knockoffs. Established designers’ credibility and reputation are on the line if it’s discovered that they stole ideas from young, independent designers—not to mention the damage to their pocketbooks when they have to pay for PR damage control.

Similarly, the market is already addressing the problem. Collaborations between low-end retailers—like H&M and Target—and high-end designers—like Jimmy Choo, Stella McCartney, and Thakoon—are becoming more common and more successful. Many brands themselves often have more than one label in different price ranges and varying fabric quality that maintain the same design aesthetic. For example, items from Ralph Lauren Collection range from $1,000 - $20,000; Ralph Lauren Blue Label $70 - $1,500; and Lauren Ralph Lauren $40 - $200. Many designers have similarly “democratized” their brands so as to take away the competitive edge from the fast fashion giants. This situation actually leads to more innovation, not less; introducing copyright may take away the incentive for designers to make their products more accessible to people in lower income brackets.

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The fact of the matter is that the purpose of intellectual property is to promote the progress of science and useful arts. In the fashion industry, especially the American fashion industry, progress and industry growth are not hard to find. Some people think that because some copyright protection is good for creativity, more of it must always be better. Experience in the fashion industry has proved this proposition wrong. Without ever having had copyright protection, the fashion industry still generates $20 billion of revenue in the U.S. alone.

(This is not even mentioning the fact that Forever 21, the most demonized of all “fast fashion” and “copyist” retailers, is a $3 billion-dollar, 477-store, 35,000-employee enterprise, something that Congress should certainly take into account.)

ID3PA could potentially create an industry mired in litigation and regulation, driving prices up for consumers, putting American jobs at risk, and limiting the fast pace that the industry thrives on.

This quote from James Surowiecki, financial writer for the New Yorker, summarizes this issue perfectly:

“Designers’ frustration at seeing their ideas mimicked is understandable. But this is a classic case where the cure may be worse than the disease. There’s little evidence that knockoffs are damaging the business. Fashion sales have remained more than healthy—estimates value the global luxury-fashion sector at a hundred and thirty billion dollars— and the high-end firms that so often see their designs copied have become stronger.”

Injecting copyright protection into fashion would do more harm than good—harming the creative process, the consumer, and the industry itself. Besides which, what fashion designer can imagine being directed by the “yea” or “nay” of an attorney?

 

For more background, watch this TED talk by Johanna Blakley, Lessons from Fashion's Free Culture, which explores why fashion is a thriving industry in spite of and because of the lack of intellectual property.

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