There’s a lot of talk about whether or not copyright protection should be extended to fashion designs, and I’m concerned about the gap between the general, idealist vision about how designers, manufacturers and retailers should behave… versus what the reality would be if this bill were to become law. So I thought it would be helpful to pause and spend a post looking in to some of the relevant language and details. Because you don’t have to be a lawyer to know that in a court room, that’s what it’s all going to boil down to.

from Bertaut.com

The Nixon Peabody law firm does a great job of explaining the act in their post, Legislation to extend copyright protection to fashion designs reintroduced in Congress and except where noted, all block quotes below are from their site, but the underlining is mine. (If you want to read the nitty gritty text of the DPPA amendment itself, it can be found here.)

If passed, the act would amend 17 U.S.C. §§ 1301, et seq., which governs copyright protection of vessel hull designs, to afford copyright protection to fashion designs embodied in, among other things, clothing, handbags, wallets, belts, footwear, headgear, and eyeglass frames.

Vessel hull? What does that have to do with anything? Well, the reason that fashion designs (as in the cut of a garment as opposed to the print of the fabric) haven’t been afforded copyrighted protection already is because they are considered a ‘useful article.’ So someone had to dig deep to find a reference of another useful article that is protected. Like a vessel hull.

But enough about vessels, what does the DPPA define as a ‘fashion design?’

As currently drafted, a “fashion design” constitutes the appearance of an article of apparel as a whole, including any ornamentation,

Marc Jacobs Fall 09 on style.com's trend report "Party like it's 1983." Do you think these garments would be filed as 'original designs' by LVMH, the parent conglomerate?

Alright so we’re looking at the entire garment, not just a piece of it. so if someone came up with a particular sleeve detail no one had ever seen before - or copied something interesting from an obscure vintage piece and filed it with the copyright office as their own original design - and you had the same detail in your garment but the other parts and pieces were different… but wait…

…and specifically protects any original elements or the arrangement or placement of any elements incorporated in the overall appearance of the article of apparel.

So if you can’t prove that said clever sleeve detail was public domain, done before somewhere by someone else, and not an ‘original element’ (and not having access to the same exclusive vintage collections it might be a hard one to research) the designer - or company backing them - that filed the design would ‘own’ that sleeve detail. For three years. Just because they said it was theres first. And just like Levis, could hire dozens of detectives to scour the racks of the big stores to find things they deem ’substantially similar’ to file lawsuits against - but we’ll get to that part of the language in a bit.

But what if you, the designer, don’t claim any ‘original elements’ but do what designers do all the time - take shapes and proportions of collars, sleeves, waistbands, darts, pockets, etc - that are part of the shared design vocabulary and sit down in your studio and come up with a nice, wearable,  ‘classic with a twist’ garment? If it’s related to the current trend zeitgeist (and if you want it to sell then it probably is) chances are it looks somewhat similar to a lot of other garments currently in stores. But where is the line between somewhat similar and substantially similar? And how does the idea of a bunch of lawyers and random John Q. Public jurors off the streets making that determination sound to you?

The Marc Jacobs design above is reminiscent of Dynasty-style 80s wear, so can we expect to see black/silver lame jackets of this shape in stores everywhere? Probably. And I’d venture to guess that John Q. Public, especially if chosen for the jury because of his lack of fashion savvy, would probably notice the fabric as much as the shape in determining degrees of similarity.

The presence or absence of any particular color, or of any pictorial or graphic work imprinted on fabric, is not considered when determining the originality of the fashion design or similarity for the purposes of infringement.

Currently pictorial or graphic work is already protected, and the fabric used - including color - is not protected. So somehow we’re going to get John Q. Public to unconsider that element in his determination of degrees of similarity.

Under the act, it is an infringement to make, have made, import, sell, or distribute any article embodying a fashion design that was: (1) copied from a protected design, or an image of such design, without authorization; and (2) created with knowledge, or with reasonable grounds to know, that such design was protected.

This part is very important and is the basis for Kathleen Fasenella’s concerns she outlines in her Fashion Incubator post; the scenarios dismissed as hyperbolic by lawyers unfamiliar with the way garments get produced and distributed. As a trademark lawyer for the fashion industry once explained to me, she is able to get the big dollar judgements and/or settlements that pay her fees not by going after obscure no-name knock off labels, but the department stores who carry their lines. And what about that factory you contracted to sew your garments? Or even the sourcing company that found that contractor for you? (more…)

(Image from NY Times article cited in this post.) I could see some potential issue with the Karen Kane pocket or the Jones Apparel one, but those are off label mass brands that sell for less than Levis. The Jelessy, Von Dutch and Fossil examples are distinct, and those brands are positioned as more premium than Levis, not imitators trying to cash in on Levis brand equity

The past week has found me deep down the Google blog search rabbit hole weighing perspectives on the proposed Design Piracy Prohibition Act. Almost all who oppose the bill (myself included) voice a concern that the small, independent, struggling, up and coming designers this act purports to protect would in practice find themselves victim to a flurry of frivolous lawsuits in a climate of legal intimidation. Immediately my mind went to a January 2007 article in the NY Times, Levis Turns to Suing its Rivals, as a shining example of the type of activity sure to grow like a cancer on an already challenged industry if this bill were to become law.

So Levi’s is becoming a leader in a new arena: lawsuits. The company, once the undisputed king of denim and now a case study in missed opportunities, has emerged as the most litigious in the apparel industry when it comes to trademark infringement lawsuits, firing off nearly 100 against its competitors since 2001. That’s far more than General Motors, Walt Disney or Nike, according to an analysis by research firm Thomson West.

The legal scuffles offer a rare glimpse into the sharp-elbowed world of fashion, where the line between inspiration and imitation is razor thin. After all, clothing makers’ trade secrets are hung on store racks for all to see, and designs can be quickly copied with small changes to exploit a hot trend.

The lawsuits, which Levi’s says it is compelled to file to safeguard the defining features on its jeans, are not about the money — one settled for just $5,000 in damages. Instead, the company says, they are about removing copycats from stores. Nearly all the cases have settled out of court, with Levi’s smaller rivals agreeing to stop making the offending pants and to destroy unsold pairs.

Returing to 2009 for a moment, let’s take a look at professor and copyright attorney Kenneth J. Sanney’s post “Overlawyered or Just Over Simplistic on his blog, The Music Law and Copyright Blog, He accuses Kathleen Fasenella of Fashion Incubator of being ill informed and hyperbolic. While taking a patronizing tone against Fasenella - who has decades of experience in the nuts and bolts of garment production - for simplifying the law, he appears oblivious to the fact that while he might be an expert in the music industry, he clearly does not understand how he has oversimplified the inner workings of the fashion industry and the dynamic of trends and how they interface with culture.

He cites legal recourses available to designers if they are unfairly litigated against, but fails entirely to consider that even with said resources in place, designers would still be stuck in spending countless hours of time and energy dealing with this hassle in the first place. Sanney then goes on to ask the question:

Furthermore, in the current business environment how many large corporations are looking to task resources (both time and money) litigating against small businesses and individuals unless they have a serious claim that pasts muster under the most strict cost/benefit analysis?

LOTS OF THEM.  Think this is lame? Sign the petition here.

Let’s return to the Levis situation to try and determine if they are indeed protecting their trademark from imposters trying to cash in on their brand equity, or simply harassing the designers who are successful because they are offering desirable alternatives to the Levis trademark that had become diluted to the point of being unfashionable. It pretty much boils down the following quote by Steven Shaul:

“It was an original design,” he said. “Why would I use Levi’s stitching? If my jeans sell for $200, I would not knock off $40 jeans from Levi’s.”

Precisely. Shaul’s customer might very well be paying for the status of the logo on the back pocket, but they are paying for something to distinguish themselves from the masses in Levis. And Levis has the right to sue Shaul for this? Apparently so…

Back in the 1980s - when Levis were still cool and Americans were offered big bucks for the jeans off their butts when traveling overseas - there were counterfeiters producing jeans that people bought because they could pass them off as Levis. Just like ladies heading to Canal Street today looking for the guys that will take them into a back alley and sell the fake Louis Vuittons that they are trying to pass of as real. And in that circumstance a company should have the right to pursue legal action. That appears to be the sort of activity that the law was designed to protect against, not declining companies out of touch with the current zeitgeist intimidating upstart designers creating distinctive and highly marketed as such new brands that people are paying four times as much for because they are not like the big mass brands…with but as Mr. Sanney will be quick to point out, I’m not a lawyer, so what do I know.

From the blog, Seattle Trademark Lawyer: "Not identical or nearly identical, so no dilution: Levi’s “Arcuate” and Abercrombie’s “Ruehl” stitch designs "

As noted in the Times quote at the beginning of this post, the vast majority of these 100+ lawsuits were settled out of court by designers unwilling or unable to take on Levis, but what happened when Levis picked on someone their own size?

The image on the right is taken from attorney Michael Atkins blog, Seattle Trademark Lawyer, in a post titled Court Finds Abercrombie’s Stitch Design Does Not Dilute Levi’s Stitch Design

In summary, the court found that the subject marks (depicted above) were not “identical or nearly identical,” so Levi could not prevail on its dilution claim.

The court found: “The advisory jury found that [Abercrombie’s] Ruehl design and [Levi’s] Arcuate mark were not identical or nearly identical. In order to be nearly identical, the two marks must be similar enough that a significant segment of the target group of customers sees the two marks as essentially the same. ‘In the dilution context, the ‘similarity of the marks’ test is more stringent than in the infringement context.’

I couldn’t tell whether or not Atkins firm represented one of the parties in this case. I am, however, curious as to what would have happened to the smaller designers Levis pursued if they’d had the resources to defend themselves as Abercrombie did. I also hope that this case provides the precedent necessary for indies to find attorneys willing to come to their defense without large retainers up front.

(more…)

As I started digging around a little bit into what actual indie designers think about the Design Piracy Prohibition Act (DPPA), I found the situation far more frightening than I ever thought it could be. Whereas before I could just chalk it up to one more example of corporate lobbying I couldn’t control and be ever so grateful I wasn’t trying to make a living as a fashion designer, now I’m starting to grasp how this could have a major impact on consumers of fashion as well, and our access to innovation, good design and quality clothing. You can sign a petition here, (you really should, it’s super easy and the least we all can do) and there are links to contact senators in the quote from Kathleen Fasenella’s Fashion Incubator below.

Picking up where I left off in the previous post…

Marc Jacobs may have risen to fame and fortune based on his genius ability to co-opt, tweak and disribute an indie aesthetic to hipster celebutantes around the globe, but anyone who designs for Louis Vuitton can hardly be labeled and indie designer. What do the real indie designers  - the one this law is supposed to champion and protect - think about the DPPA?

From Blogger Erika Jurney’s site, Try Handmade, “Beware the Design Piracy Prohibition Act (HR 2196)”

If you care about being able to buy indie fashions, then you will be horrified to learn about the Design Piracy Prohibition Act (HR 2196). On the face, it seems reasonable. The purported goal is to prevent designers from ripping off styles from others, but their methods are insane.

Under this legislation, however, designers will need to consult with a lawyer throughout the design process to ensure that every new design created could not subjectively be found at a later date to be “closely and substantially similar” to one protected in the Copyright registry…

Further, young, up-and-coming designers would be susceptible to legal intimidation from designing anything new at all, as they would likely not have the resources to fight a legal challenge in court…

While the bill purports to keep all fashion designs that have existed in the past free and open for all to use, the legislation would allow the ability to copyright non-original design elements in the public domain if arranged in an original way.

Moreover, since there is no test for originality, the registry will begin to be populated with designs that from the public domain. Thus, a designer who draws upon inspiration from the public domain, can easily find himself/herself stuck in costly litigation. - Fashion Incubator via Boing Boing

Anyone out there know any fashion designers? Big, little, rich, poor, amateur or pro, have you ever known a fashion designer who has time to sleep, much less keep up with this kind of research and paperwork? Again, I repeat, the only designers who will benefit from this act will be the ones with enough corporate backing to retain copyright lawyers, the ones who will really benefit the most from this law.

This point is debated by two well known designers via a Reuters article is making its way around the web, which I was able to access on Canada.com:

Toledo also fears the law could hurt the independent designers it was written to protect, by making them risk expensive copyright lawsuits. “Half these young designers can hardly pay their sewers. So you’re going to take that money and go to court?” she asked.

The article highlights the arguments between the CFDA (Council of Fashion Designers of America) - an elite, invitation-only organization representing the only the hottest names in high-end fashion; the three-four figure garments featured in aspirational editorials of the fashion media - and the American Apparel and Footwear Association, which represents the major retailers from which the vast majority of Americans procure their clothes.

Cornejo said the law would encourage collaboration between the two sides of the clothing market. Under the DPPA, mass-market retailers would have to hire designers to consult, instead of copying, she said.

But Toledo disagrees.

“They said that manufacturers would be forced to hire us, the designers. Many of the interns I’ve had happen to work now for JC Penney, or the Gap - they are designers!” she said. “What are you saying, it’s a hierarchy? We’re better?”

Toledo worries the DPPA will give high fashion a monopoly on trends, making good design more expensive and reducing consumer choice. “You’re now saying that the top (designers) can own the top and the bottom levels of the market,” she said.

The corporate sponsors of the top designers, that is.

But if you really want to know how scary this is for independent designers, take a look at what else Kathleen Fasenella (who has tirelessly championed up and coming designers by being one of the only sources for rock solid soup to nuts how to instructions on turning one’s dreams into a solid line of manufactured clothing distributed in stores) has to say about what life would be like for aspiring designers under this new law. The quote is from Proposed Law to Destroy 90% of Design Businesses lengthy, but is worth reading and sharing:

It seems so surreal; between CPSIA, Proposition 65 and now the Design Piracy Prohibition Act, there seems to be nothing less than a full scale war against the apparel industry. Have you forgotten about the Design Piracy Prohibition Act? Well, it’s been resurrected and presented to Congress (HR 2196). It’s nothing short of a bold power grab to protect wealthy socialite designers at the expense of independent designers, putting over 90% of them out of business. Consider this scenario of what will happen if this bill is passed:

Your name is getting out there, picking up more doors everyday and your accounts love you. Now that your fabric samples have arrived, you’re inspired and happily sketching your new styles. This is sure to be your best collection ever! So then you reach for the phone to schedule a slot to have your patterns and samples made. But on the other end, the pattern maker or sewing contractor refuses to work with you. Your heart sinks through the floor, why? You’ve got an established relationship, you’re a great customer with regular work and steady pay but still, no one will take your contracts. In fact, they’re shutting down themselves.

Why no one will take your work:
Let’s say we help you produce this line, you sell it and make your pile crumbs. Then -thanks to the influence of the Council of Fashion Designers of America (CFDA, membership by invitation only) and Congress- somebody can come out of the woodwork and claim it is their design, they own it and now you owe them. If they registered the design and you didn’t know it, this could be perfectly legal. Of course you didn’t copy them but it won’t matter. The fact that society designers have been copying nameless unknown independent designers for years doesn’t even register. Even Diane Von Furstenberg, the leading champion of this bill recently got caught doing it. Because you don’t have any money, this party will sue everyone in your production and retail chain. That means pattern makers, contractors and the stores who bought your stuff. So in the interests of avoiding law suits, any service provider is going to require you prove you own it. It’s even worse for retail buyers who face potential criminal prosecution for dealing in pirated goods. Everybody who helps you or buys from you is going to require you to prove ownership of your concept before they’ll have anything to do with it. If wealthy society designers like Diane Von Furstenberg have their way, this could become an unfortunate reality. Paradoxically, CFDA is telling Congress they’re protecting you.

You think you (or we) won’t be sued in today’s era of lawsuit happy plaintiffs? Have you ever heard of a patent troll? A patent troll is someone who enforces patents they have no intention of manufacturing, against alleged infringers. It’s somebody who makes a living filing legal papers, they don’t actually make anything. In this climate, you think there won’t be fashion copyright design trolls? Right, and the fashion industry is one big family working happily together amid resounding choruses of Kumbaya. Good grief, there are churches tattletaling on other churches to state health departments over competing bake sales! If the morally superior are ratting each out over cup cakes, you think they won’t over caftans? Folks, this is going to get ugly. The CFDA, living in happy-land as they are, deny this will happen saying similar laws haven’t encouraged law suits in France or Japan yet neither of those two nations have culture as law suit happy as the United States.

It’s been two years since I last wrote of this and I couldn’t imagine it’d go anywhere considering how it so obviously favors the wealthy and famous at the expense of designers barely eking out a living but this thing has grown legs; if H.R. 2196 becomes law, it is certain to kill what’s left of the industry except for wealthy socialite fashion designers with in-house legal departments. In one fell swoop, this law will put over 90% of us out of business. Even me. Fashion-Incubator will become an artifact, who will need it? You all will have to speak out. Congress has been misled, they think they are helping you!

The cost of doing business has just gone up astronomically. You’ll have to hire a lawyer, pay for searches through a design database of all existing design registrations. You thought a trademark or logo search was bad? I have no doubt there’s over 10,000 clothing designs out there for every logo. This will cost a fortune. But, you’ll have to do it if you want to stay in business. And those of us left standing will have to have our own lawyers to check up on you and draw up contracts and buy more insurance, our prices will double if not triple. Somehow I don’t think consumers will be happy. Assuming we could afford to shop at Neiman’s and Nordstrom’s, few society designers cut anything larger than a size 12 and I for one am not thrilled at the prospect of mini-skirts, navel grazing tops, tepid/garish colors of whatever constitutes the fashion trends dictated by elite designers.

Even with proof of registration in hand, you will have to produce your registered design exactly as sketched. No design changes or iterations in process are allowed, otherwise you’ll have to start over and re-register a new design. Forget shortening that sleeve, changing the shape of that neckline or tapering the pant leg of that prototype. So what if it ends up looking lame and you have to start all over? That will be the new cost of doing business. Gee, how long will it take to get a line to market?

You know what the worst part is? A law professor specializing in Intellectual property told me that the standard for determining the innovation of a given design is not based on expert opinion. No no, the legal definition is based on the opinion of a non-expert, what the average Joe thinks looks similar. In other words, someone like your significant other who doesn’t even notice you’ve cut or colored your hair or are wearing a new outfit and yet they’re supposed to be the judge of a sleeve design detail? WHAT?! The average person just doesn’t notice that much* and no contractor will stake the viability of their business of what constitutes a copy if the litmus test is determined by John Q Public. So, every designer would need paper. Good luck finding a contractor otherwise.

It’s not law yet, there’s still time to speak out!

It sounds like a good idea - protect the uber creative cutting edge independent clothing designers from the the big bad corporate mass fashion retailers who steal their business when they rip off their ideas and sell mass produced cheap imitations. Too bad it won’t work that way. Mark my words, if the Design Piracy Prohibition Act (DPPA) makes it through the Senate, it will be multimillion dollar large corporate interests who back the big name designers who can afford teams of lawyers that receive ‘protection’, not the struggling independents who can barely afford their rent.

From Addovere.com: (Left: Marc Jacobs, Right: Forever 21, via Fashionista)

But look at the example above - isn’t it painfully obvious that Forever 21 copied the Marc Jacobs dress exactly? Isn’t that wrong? Well, yes, it is. And believe me, I’m no fan of Forever 21. But doesn’t this dress look like something you’d see - or have seen - in a vintage store? Don’t you think that it’s highly likely that Marc Jacobs (or even more likely, one of his 80+ design staff) copied and tweaked the design of an actual vintage dress? Leveraging vintage clothing for ‘inspiration’ is standard practice in an industry that demands dozens and dozens of ‘new looks’ from designers every few months… who are designing for an audience grown accustomed over the past decade plus to ferreting out vintage clothing because it’s so much cooler than the crap in the mall. Don’t believe me? Just put the Marc Jacobs & Louis Vuitton documentary in your Netflix queue and watch the practice in action. When I got the chance to visit and interview the premiere vintage supplier in NYC (I won’t cite their name because I didn’t ask for blogging rights at the time) they explained how their top stylist would pull together a set of items from their massive collection, create an inviting display, and would regularly have top name designers (or their staff) walk in the door and say ‘I’ll take it all’ and there it would be, 3 months later, strolling down the runway.

Marc Jacobs may have risen to fame and fortune based on his genius ability to co-opt, tweak and disribute an indie aesthetic to hipster celebutantes around the globe, but anyone who designs for Louis Vuitton can hardly be labeled and indie designer. What do the real indie designers  - the one this law is supposed to champion and protect - think about the DPPA? Stay tuned as I explore this issue further in my next post.