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!