US DEBATES THE PROS AND CONS OF COPYRIGHT PROTECTION FOR FASHION DESIGN
The Innovative Design Protection Act (IDPA) is the successor to the Design Piracy Prohibition Act (DPPA) introduced in previous sessions of Congress. Senator Charles Schumer introduced the bill along with 10 initial co-sponsors, the Council of Fashion Designers of America, and also the American Apparel and Footwear Association which had previously expressed some concerns with the bill. The IDPA is a bill to prohibit design piracy in the US, and according to some proponents, to prevent the US from becoming a safe haven for design piracy and to promote international harmonization of IP protection.
The IDPA bill would amend the Copyright Act to provide a short term three-year copyright protection to fashion designs without the requirement for registration. Under copyright, an owner can rarely bring an action for an article that is not registered. The IDPA would not protect any design that has been made public prior to the law’s enactment. Those designs, lacking in originality, will belong to the public domain. The bill also includes a home sewing exception.
The original standard of infringement under the DPPA was “closely and substantially similar” , and defenses to infringement included merely reflecting a trend, and independent creation. One criticism of that bill was the test of “substantial similarity” that courts would be required to use to determine if articles are infringements of protected articles. The substantial similarity liability standard “presents one of the most difficult questions in copyright law, and one that is least susceptible of helpful generalizations.” The IDPA adopts the “substantially identical” standard for infringement, largely borrowed from trademark. This is probably the most publicly debated issue, and a compromise dating back to the initial hearing on the DPPA.
PROPONENTS OF THE ACT: FASHION DESIGN IS A CREATIVE WORK AND DESERVES PROTECTION TO DETER PIRACY
The Council for Fashion Designers and Artists (“CFDA”), a non-profit trade association for American fashion and accessory designers, represents a small number of elite and often very successful designers including Tom Ford, Calvin Klein, Ralph Lauren, and Diane von Furstenberg. CFDA argues that American designers need protection for their designs in order to remain innovative and competitive in today’s fashion industry. Essentially, the pro-IDPA arguments focus on the deterrent factor behind the bill, and that the rampant copying of fashion designs hurts the industry. The IDPA proponents also assert that copyright protection may strengthen the American fashion brands, pointing to the French protection of fashion as an art form which has helped maintain the pre-eminence of the French fashion industry.
Susan Scafidi, a professor of Fashion Law at Fordham University School of Law, is a vocal supporter and one of the sponsors of the Bill. She argues that it’s the small designer who suffers the most without copyright protection-they have no trademark to brand per se, and their designs are knocked off without recourse. Small and start-up designers are at great risk if their designs are not protected by copyright because small designers cannot rely on their reputation or trademark to make up for lack of design protection and cannot afford litigation for enforcement. She argues the law would change the behavior of the large fast-fashion companies that knock off the small designer’s ideas and that if these companies know that they cannot make an exact copy, they will be required to innovate-which she rightly states as the goal of IP. If they do copy, a cease and desist letter may be enough to stop them since they know the designer has a prior right. Other proponents of the IDPPPA further assert that the relatively short term of protection afforded—three years—is particularly suited to the fashion industry’s shorter life cycles.
OPPONENTS OF THE ACT: THE ACT WOULD HAVE A CHILLING EFFECT ON THE US FASHION INDUSTRY BECAUSE LESS PROTECTION EQUALS MORE INNOVATION
The American Apparel and Footwear Association (AAFA) strongly opposed the DPPA, citing the chilling effect such a law would have on the US fashion industry, but the AAFA has come on board with the latest compromises resulting in the IDPA. The other opponents to the bill believe that a low IP environment is beneficial to the US fashion industry, and that copyright protection would curb creativity and innovation in fashion design. Legal scholars argue that due to the referencing and borrowing inherent in the fashion industry cycles, originality is difficult to define and monitor and too low of a bar for copyright protection in fashion. But by far the most convincing arguments relate to the principal at the core of the bill, that the copying of fashion design must be deterred in order to encourage innovation. Many IDPA opponents assert that in reality the contrary is true, that copying in the fashion industry does not stifle innovation, but rather that copying is beneficial to the fashion industry. This concept, developed by Kal Raustiala & Christopher Sprigman, is referred to as “The Piracy Paradox”.
The Piracy Paradox arises from the premise that desirable designer fashions get copied by lower-end producers and are then picked up by the masses. By the time the masses have adopted the fashions, the consumers of designer fashions are looking for the next trend. Therefore, the copying of the fashion designs creates a faster trend cycle which benefits the fashion industry by inducing rapid turnover and additional sales. And Raustiala and Sprigman argue that the consumer is the one who wins in this scenario, because the consumer has access to affordable yet fashionable products. The conventional thinking is that unauthorized copying of fashion designs tarnishes a brand’s image by confusing the public and commingling the designer’s image with that of cheaper and less desirable products (or inversely, literally stealing a design to produce a design copy under a different brand and stealing the consumer as well). The piracy paradox theory essentially turns this theory on its head, and asserts that once a high-status customer senses that the fashion trend has become ordinary, the high status customer moves on to the next trend. But for the ordinary consumer the trend stays in place longer and even extends to the mass market, at which time the ordinary consumer moves on to the next trend. Because of the cyclical nature of the industry and the constant need for new products and trends to feed the cycle, the over-arching theory behind the piracy paradox is that fashion design works best in a low-IP environment where designs can be pirated/copied most effectively. In fact, “the low-IP regime acts as an accelerant of innovation.”
And then there is the nearly universally accepted notion that much of fashion design is an accepted derivative work i.e., a work that appropriates certain design elements of a specific design but is still distinguishable to the average consumer. This derivation is helpful to those consumers who wish to flock to the latest designs while still being distinguishable in some way. And, the designers of the original fashions most often accept this type of derivative work as a part of the world of fashion, and simply move on to the next design and trend rather than spend time and money fighting every knock-off which may just as well be considered a derivative work. It should be stated that the piracy paradox, while certainly applicable for the major fashion conglomerates, leaves small designers outside of the analysis. It’s as if the proponents of the piracy paradox believe that fashion innovation is solely a top-down affair, when industry experts know that this is often not the case. Street fashion and young/small designer fashion is often copied by the major conglomerates themselves, with little to no recourse when considering the time and expense needed for the creator to pursue litigation. The cost of arguing whether a second design is was substanitally identical to the original design is significant in terms of both time and money. Additionally, by the time a court reaches a final decision, the fashion design will likely no longer be in vogue. Therefore, it is this segment of the US fashion industry that will suffer without further protection, even though the industry as a whole may thrive.
A direct copy, however, is certainly almost never looked upon with favor, especially if done by a direct competitor who is likely to steal the original designer’s sale/customer. However, the same designer who may be willing to litigate a direct competitor’s knock-off, may not care quite as much if fast-fashion industry copies his designs for some of the exact reasons stated in the piracy paradox theory. Frankly, there are many reasons why European designers may not choose registration or the courts as a way to protect their fashion designs. Therefore it is difficult to accept the notion that design protection is not fully enjoyed in the EU as a rationale for not providing additional IP protection in the US, although many opponents to the IDPA are quick to do so. But beyond whether the European or the American approach to provide legal protection for fashion design is better, the bigger question for the IDPA revolves around the concept of territories when looking to impose new protections and requirements.
CONCLUSION: LEVEL OF IP PROTECTION GRANTED NOT DETERMINING FACTOR
Opponents of the IDPA commonly refer to the Piracy Paradox as evidence that while there may be a dearth of IP protection for fashion design in the US, there is no correlating negative effect to the industry because the US has a thriving fashion industry. The EU fashion industry and market are thriving too, even in the face of blatant fashion design piracy and an apparent under-utilization of protections. However, an identical system of protection in the US may not produce the same effect due to cultural differences in the territories. Taken one step farther, to introduce added IP protections could have a chilling effect on the marketplace, one that doesn’t exist in European markets due to the differences in the civil law systems. “Unlike in Europe where there is a weak civil litigation system, here in the States we have a very powerful civil litigation system and we are a society teeming with lawyers, including obviously a class of litigation entrepreneurs that accesses the Federal courts.”
Although the two territories operate with very different levels of IP for fashion designs, it would appear that the level of IP protection available is not determinative of success in the fashion industry. With increased protections and incentives for litigation in the US, the market could change dramatically in ways that would not necessarily be expected in the EU, i.e. more legal protection in the US would probably equal more litigation and a potential stall to fashion innovation as designers act out of an abundance of caution for fear of crossing the inspiration/imitation line. Whether IP protections granted are many or few, the best environment for a thriving fashion industry still appears to be one in which the utilization of the IP protection is low. And within each territory, it would be advisable to structure the level of protection taking into account that territory’s cultural norms as regards utilization.
Finally, we must address the issue of the technological advances that allow the fashion cycle to recycle itself at a pace inconceivable only a few years ago. To a certain extent, design copyists are able to take the punch out of the piracy paradox with their ability to copy designs before the original designer can produce one garment. No longer does the mass market have to wait six months for fashion trends to trickle down, through fast-fashion and the like the mass market is often on the edge of fashion just as quickly, if not more quicly, as the top designer’s customers. This may be the best argument for additional IP protections for the original designer, both the original top fashion house designer and the small emerging designer.
The IDPA may not be the perfect solution, but a limited and specific protection could certainly provide a proactive response to industry changes as they occur. Certainly there is no easy answer to this conundrum, other than for fashion and IP legal experts to remain alert to potential risks inherent in their applicable territory, risks which may not be so great that a radical change is immediately necessary, but which may require future intercession. Because even if they find that current IP protections are well-suited to their territory and the industry today, there may very well come a point at which these protections are no longer adequate which would then warrant adjustments. For the moment, however, the US will continue to debate whether now is the time for intercession.