Friday, August 19, 2011

The IDPPA - Thoughts on Copyrights for Fashion Design

The Innovative Design Protection and Privacy Prevention Act (H.R. 2511) is back in the news, after more testimony.  (It's somewhat hilarious to me that they are also using this bill to amend copyright laws for vessel hulls.)  This is the famed "copyright for fashion designs" bill, and is only about 10 pages long.  I love fashion, but this bill makes me a little nervous.  Sure, it would be great if Forever 21 couldn't run out and rip off Prada, or if Steve Madden couldn't run out and rip off Gucci.  But...how in the hell do you even determine whether a fashion is copyrightable in the first place, and what effect will this have on smaller designers?

Let's look at the definition:
(7) A ‘fashion design’—

(A) is the appearance as a whole of an article of apparel, including its ornamentation; and

(B) includes original elements of the article of apparel or the original arrangement or placement of original or non-original elements as incorporated in the overall appearance of the article of apparel that—

(i) are the result of a designer’s own creative endeavor; and

(ii) provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.
It looks like colors are also out:
The presence or absence of a particular color or colors or of a pictorial or graphic work imprinted on fabric shall not be considered in determining the protection of a fashion design under section 1301 or 1302 or in determining infringement under section 1309.

This is what is not protected:
(B) in the case of a fashion design, embodied in a useful article that was made public by the designer or owner in the United States or a foreign country before the date of enactment of this chapter or more than 3 years before the date upon which protection of the design is asserted under this chapter.
Where do you even begin with this? Words like "original elements," "original arrangement," "non-trivial," "distinguishable," "unique," and "non-utilitarian" sound great in theory, but what does this actually mean in real life in terms of fashion, and how do you apply these terms?  How do you determine whether your fashion design is one of these things?  Presumably most designers probably believe that what they are doing is non-trivial, unique, and distinguishable.  But how do you prove that?  Plus, fashions are recycled all the time.  We're still somewhat in the mix of the resurgenc of 80s fashion now.  Can you show that your design is unique when someone else did something just like it 20 years ago?  Or is that just homage?  Do the placement of nonusable buckles on a purse make it unique?  Can you stop everyone else from putting a nonusable buckle there for the next three years?  There is not a neverending amount of things you can do with a skirt, dress, sweater, or pair of gloves.  Would non-usable buttons sewn randomly on a pair of gloves get copyright protection?  What about random lace panels on a dress?  Or how about a lopsided collar on a shirt?  Maybe an upside down pointed triangle type hem on a skirt?         

I fully understand why fashion designers want a law like this.  It must be unbelievably frustrating to create a garment, purse, or pair of shoes and then see ABS, Steve Madden, or Forever 21 come out with a near exact duplicate two weeks later and not be able to do anything about it.  I absolutely hate that.  I think the fashion houses will register for copyright protection on every single design they release every season.  (There is no examination per se in the Copyright Office; you just register, and if it is not valid that will come out during litigation.)  And I foresee a lot of litigation over this among the various fashion houses as the statute works out its kinks and a body of law further interpreting the statute is developed.  (Which is, by the way, great for me.  I'd love to do more copyright litigation work.) 

This, however, is not a good thing for smaller designers and fashion companies who can't afford litigation.  You know the folks who sell on Etsy or at art fairs and places like that and become contestants on Project Runway?  Well, if they are selling their wares on Etsy and one of the big fashion houses thinks there might be copyright infringement and files a lawsuit, guess what happens?  Generally that person can't afford the million or so dollars it will cost to litigate the case, so they will settle and stop selling, regardless of whether or not they are liable.  Remember that anyone can file a lawsuit for anything, but until you can convince the judge that the case has no merit, you are stuck in litigation hell paying people like me to try to get you out of it.  The bigger companies will fight things out between them, but the smaller companies are who I am truly worried about here, and the affect a bill like this will have on them.  This really could put a dent in innovative new designers and what they are allowed to do.  We've seen this happen in patent law, where the smaller fish get put out of business trying to litigate patents with the bigger fish.   

I guess we can also look forward to seeing a copyright notice on the tags of our clothes.  It will interesting to see whether or not this bill passes.  

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