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Words, images, recipes, and ideas are all protected under copyright laws, with the exception of fashion designs. The fashion community has operated freely without enforcement or protection of intellectual property laws in the United States because, well, we’ve been copying each other for centuries. The requisite standard of "novelty" for a patent law doesn’t really exist in the fashion world. Everything—every stitch, seam, silhouette, dart, hem, pleat, rouche, cut, and combination of each—has probably already been invented at some point in the history of wearable textiles. The $181 billion-a-year fashion industry is an ocean of art and trends that come and go in tidal waves, bringing with them inspiration and innovation that is freely exchanged, refined, and expanded upon. Besides, fashion designers rely on the media to "get credit" and recognition for trend setting—not the courtroom. Until now?
The idea to pass a law to institute a copyright for fashion designs has been brewing for several years, but in the past few months big business names like Tory Burch, Maria Cornejo, and Tim Gunn have been lobbying Congress in greater numbers and frequency. The Design Piracy Prohibition Act was initiated by the exclusive Council of Fashion Designers of America (CFDA), spearheaded by Diane Von Furstenberg, who was recently caught knocking off a small Canadian designer, and other big business labels who are able to afford the copious legal fees associated with their proposed legislation. The law would require designers to register their design within a six-month period that it was first made public—meaning when it was first put out on the market for individual or public sale. No other designer would be able to reproduce a design considered "closely and substantially similar" to it for three years.
According to the opposition of the proposed law, this legislation could eliminate up to 90% of the national fashion industry, including designers who cannot afford the legal counsel and supervision to ensure they don't become liable for copyright infringement, as well as pattern drafters, graders, colorists, and many other fashion professions who could also be roped into a lawsuit. And when the competitive market is wiped out, so is consumer choice. For example, if designer x has the copyright on the pleated bubble skirt, but the line only runs in 0-8 (sorry plus size gals) or you're allergic to acetate and polyester fabric then you're pretty much SOL. And in the scenario that we are only able to purchase a specific garment from only one designer then clothing prices are bound to soar.
There doesn't seem to be many voices out there that speak in favor of the legislation, other than the CFDA and other fashion designers with big, corporate backing. At first glance, it makes sense why 86% of independent designers and fashion organizations composed of mid-level professionals, like the American Apparel and Footwear Association, oppose the act and fear that the proposed law would create an infrastructure that would hinder creativity and opportunity, especially to those with less of the latter.
But we found one...
We met up with Dolores Gill of Dirty Dog Jeans—a local designer recently featured in the Couture finale of Seattle Fashion Week—to get the other perspective on this legislation. She reminds us that "not all big business is bad business...it's about how they get there that matters." And trying to compete with the "big dogs" isn't easy for an up and coming designer, especially with an unregulated manufacturing industry and no copyright protection. "This law will prevent mass retailers like H&M from knocking off other designers and selling them before we can. Factories won't sign non-disclosure agreements; it's too lucrative for them to show other orders and sell them to scouts.... I know because they've shown other designers' work to me. It'll weed out knock-off celebrity designers and big label trend scouts who are riding off the backs of smaller designers who don't have the power to fight back."
Despite the ambiguity of the proposed designer registration process, Gill is confident that this is the only way to ensure protection from—not for—large-scale designer labels and hustling factory floor managers. "France has had copyright laws for fashion designers for many years, and it has not inhibited or marginalized emerging designers. If I want to take my business to the next level of mass production—to be like Ralph Lauren—I need protection too. The registration process that this law proposes may cost some, but it is worth it."
But this law may be a few centuries too late. Can it really be done fairly—to the pioneers of design who are really to be credited for everything we (re)create and wear today, and to small indie designers competing with mainstream manufacturers? And is it really capable of putting a stop to fashion bootlegging? We have yet to see the effects of this legislation if it is enacted, but what's at stake is serious and transcends credit and recognition. Creative freedom and competitive opportunity are both critical in the design industry, and if this law passes we'll be lucky if we get either.
To petition against this act, sign here, or you can send an easy automated email to your legislators. To show your support in favor of this act, sign here. Eric Garduno on the House Judiciary Committee is also interested in hearing your concerns and comments about this act, and can be emailed here.
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I'd like to quote some Lessig on this subject.
The idea of treating IP as actual property is misguided at best. It is the idea that innovation benefits all of society, and even more so when people are allowed to freely build upon that innovation. Imagine a world where the concept of a long sleeved shirt was copyrighted. All variation on that then becomes a legal matter rather than a creative matter.
With the Sonny Bonno Act, American copyrights last for over 100 years. Even a minor innovation in fashion design would then be locked up by a person or corporation for over a generation. That is no kind of world to live in as far as I'm concerned.
The lack of IP in fashion is what makes it such a vibrant and innovative industry. The lack of IP works both ways allowing designers to expand upon ideas and trends. This is most certainly in the public interest and I would guess this has had a net benefit to the creative endeavors of more fashion designers than it has hindered.
-Esteban
The quote is an excerpt from Lessig's blog and can be read here: http://www.lessig.org/blog/2009/05/the_solipsist_and_the_internet.html