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Posted by on Oct 12, 2010 in Law | 0 comments

The Innovative Design Protection and Piracy Prevention Act

That’s the name of a bill that would extend copyright to fashion. Law professor Susan Scafidi, who helped to draft the bill, did a nice job defending it on On The Media. Here she explains some of the ways it differs from copyright laws protecting music and movies:

One is the very short three-year duration. The other is that it only protects things that are substantially identical to the original. So if you copyright a book, you also have rights to the movie. If you protect a fashion design via the new bill, all you have rights to are that design, and anything that has no more than merely trivial changes.

The reason why the standard is substantially identical and not absolutely line-for-line and stitch-for-stitch identical is that in the process of making cheaper copies, little cut corners creep in. So the idea is to capture something that won’t have major loopholes in it, but will protect really just the exact design.

There is no copyright protection for fashion in the U.S. OTM had no guest providing a contrary view. Surprising. The bill was introduced by Chuck Schumer on August 5. Ezra Klein had a piece in Newsweek later that month arguing against the bill. He answered Scafidi with Jennifer Jenkins, an intellectual-property expert at Duke:

“In fashion, copying has benefits,” she argues. First, knockoffs make designs trendy, and that increases the value of the original, and thus the incentives for designers to innovate. Second, it makes them affordable, so more people can wear them. Vera Wang and Allen Schwartz aren’t selling to the same crowds, and there are a lot more people shopping at discount stores than at designer boutiques (which is why many designers are now licensing their names to retail outlets like Target). And third, it speeds up innovation, as fashion designers have to keep churning out new products to stay ahead of the copycats. …

Too often, copyrights are used not to protect consumers by making sure they have access to new products, but to protect the profits of producers. It’s no coincidence that the rise of the Internet—which led to an explosion of low-cost distribution networks, new forms of competition, and unexpected types of innovation—has also led to calls for new and stronger forms of intellectual protection.

Consumers assume this is all for them, as that’s what they’ve been told. But it isn’t. There’s a reason we’re skeptical of monopolies, and we shouldn’t forget that even when they’re dressed up as “copyrights.”

Techdirt’s Mike Masnick reminds us why the fashion industry has thrived without copyright. He goes on to quote Johanna Blakley on some of The Many Ways In Which Fashion Copyrights Will Harm The Fashion Industry:

Right now, designers pore over vintage magazines and patterns and visit museum archives in order to find inspiration for the next season’s look, cherry picking design elements that feel fresh and in line with the current zeitgeist. It’s a refreshingly open process unhindered by legal consultations. Those archives could become battlefields where litigants try to find evidence to support their assertion that a design is or is not unique. The geeky librarian in me is worried that some powerful people may attempt to limit access to particularly rich collections of design history and some unscrupulous types may destroy or hide rare materials that prove that their new design isn’t as unique as they claim.

The scope of items that the bill intends to protect is larger than you probably think. It’s not just ornate red carpet gowns: it also includes coats, gloves, shoes, hats, purses, wallets, duffel bags, suitcases, tote bags, belts, eyeglass frames and underwear. I can only imagine the lengths to which some companies with deep pockets will go to lay claim to an exclusive right to an iconic popular design.

The sad thing is that just about everyone will suffer (well, except for lawyers). Consumers will pay higher prices (someone has to pay those legal fees) and they won’t have the same access to the plethora of knock-offs that allow them to participate in global fashion trends without paying aristocratic prices. Designers who can’t afford legal counsel will worry about being accused of copying and they probably won’t be able to sue if someone copies them because, well, litigation is expensive.

For more, Kal Raustiala and Christopher Sprigman are professors of law at the University of California, Los Angeles, and the University of Virginia, respectively, writing in the NYTimes on Why Imitation Is the Sincerest Form of Fashion. Overlawyered looks at design “knockoff” legislation here, here, and here.

Three years sounds so innocent. But it’s worth remembering the original copyright law, in 1790, was for 14 years with the option of one 14 year renewal (and it was optional, requiring notice upon first publication to gain coverage). Today it is the life of the author plus 70 years. The steep increase in the length of copyright terms came at the end of the twentieth century. How long do we honestly believe that 3 year limit on fashion copyright would last?