Industry Voices - A Response to the ’New’ Bill To ’Protect’ Fashion Design
The Innovative Design Protection Act (S3523) was introduced on Sept. 10 by Sen. Charles Schumer (D–N.Y.), reviving the debate over whether fashion can—or should—be protected and what impact the legal protection would have on the industry.
Past versions of the legislation, called the Innovative Design Protection and Piracy Prevention Act (IDPPPA) and the Design Piracy Protection Act, have failed to pass within the legislative sessions they were introduced. The reintroduced bill includes some revisions over previous versions, including an extended time period for notification about a perceived copyright violation.
In the current version is a requirement that an infringing design must be found to be “substantially identical” to a previously created original design or, as it is written in the bill, “an article of apparel which is so similar in appearance as to be likely to be mistaken for the protected design and contains only those differences in construction or design which are merely trivial.”Proponents of the bill are seeking to grant three-year protection to original designs, while opponents argue that the law, if enacted, will stifle the free flow of trends.
Once again, this is sure to be a hotly debated issue with the potential to alter the way the industry currently operates. Under current copyright law, a fashion design cannot be protected, although original fabric prints and surface decoration can.
We have invited members of the industry to weigh in with their views on the bill and its potential impact on the industry.
Industry Voices - A Response to the ‘New’ Bill To ‘Protect’ Fashion Design
By Ilse Metchek California Fashion Association
The proponents of the “new” bill (Innovative Design Protection Act S3523) believe that this is a “workable and practical approach to a real issue of ‘design piracy.’”
The bill purports to ameliorate frivolous litigation: “In order to limit the costs of frivolous litigation there is a high burden on plaintiffs to bring a case to court. The plaintiff will have to plead facts establishing that he or she has a case, and there are severe penalties for misrepresentation by a plaintiff.”1
A $10,000 fine is not a “severe penalty” when someone has caused a defendant to hire a lawyer, remove the manufactured merchandise from retailers’ shelves and prove that the plaintiff is incorrect by substantiating that the “original design” has a historical basis and was not original.
Now, let’s talk about a “high burden” of proof! There is no registration, copyright or other licensing required in this bill. Anyone can just say, “I did it first!” Let’s assume this is the conversation with the court, or an arbitrator, or a judge. (Who or what is the governing body?)
Did you create this without assistance? “Yes.”
Describe the creative process you used in designing this product: “I stayed in my garage for 14 hours, without a break, a phone, a computer, a cellphone or a smartwatch. No outside source of inspiration, and I cannot I recall ever seeing anything like it.”
Did you give the defendant notice? “Yes, I sent him a letter 22 days ago.”
Have you heard from the defendant? “No.”
Can anyone corroborate your claim that there has never been anything like this before? “Yes, my friend, Ken, can and he has been in the fashion business for a long time.”
Ken, have you ever seen anything like this? “I studied every edition of Vogue and WWD ever printed. Looked at every photo of every runway show and saw nothing like this.”
Plaintiff rests.
However, the “high burden” is now on the defendant to show that her/his design was also original and the result of a trend and/or historical research. By the time the defendant has proven that the “original design” feature had been in public view before, the legal fees incurred by the defendant are in six figures.
The “new” bill includes a “21-day written-notice requirement, along with a 21-day grace period before an enforcement action can commence, as part of “efforts to prevent a flood of litigation.”2 So let’s get this straight. In 21 days, a manufacturer should be able to recall all the merchandise shipped and every piece in the manufacturer’s pipeline. This is not possible, given the complicated distribution systems of current retailing.
“Substantially identical”? We still do not know what that means. Is it the sleeve, the skirt, the collar, the silhouette? There has yet to be single example offered by the proponents of the bill that defines “original design.” Additionally, no empirical evidence has been shown to prove that any designer was ever financially “hurt” by design copies.
An appropriate quotation from Coco Chanel is still valid in today’s litigious world of fashion: “Being copied is the ransom of success.”
This piece of legislation will add an unnecessary expense line for “legal fees” to every apparel producer in the United States and introduce attorneys to the design room—creating an environment that will move more production and responsibility out of the country. Although retailers are “exempt” from this “new” version of the bill, they are clearly “apparel producers” for their private-label merchandise and will not be able to avoid frivolous litigators.
Where is their outrage?
1 Leonie Barrie, “New Bill to Protect Fashion Designers,” Just-Style, Oct. 1, 2012 2 Leonie Barrie, “New Bill to Protect Fashion Designers,” Just-Style, Oct. 1, 2012
