Speaking of friends, this bill has quite a few of them. It's the successor to the Design Piracy Prohibition Act (DPPA) introduced in the previous two sessions of Congress and in the House in April 2009, so the party's been ready to start for a while. Senator Charles Schumer (Chuck, since we're all on an informal basis here) introduced the bill along with 10 initial co-sponsors, as well as a thumbs-up from not only the Council of Fashion Designers of America, the initial proponent of protection, but also the American Apparel and Footwear Association, which had previously expressed some concerns. In other words, the creative designers and the companies traditionally more focused on manufacturing and distribution gathered around the table, talked to Chuck, and now there's a bill. (Yes, since many of you have asked, I was the academic at the table during the process. It's a nice table. And that's about all I should say, apart from giving props to the senator and his staff, since everyone directly involved agreed to be discreet -- hence the silent blog 'til now.)
So what's in this narrowly tailored, cutting edge, couture legislation?
Something old (from the previous bills):
- Short, 3-year term of protection.
- Structure. It's an amendment to chapter 13 of the Copyright Act, which currently applies only to vessel hulls.
- High standard to qualify for protection, amounting to originality plus novelty. New and unique designs will qualify for protection, while everything else remains in the public domain.
- Independent creation defense. As in copyright, it's theoretically possible for creative lightning to strike twice, without triggering liability.
- No registration, period. This eliminates a previous hurdle, goes one step beyond copyright, and benefits emerging designers, my greatest personal concern over the past 5 years.
- Heightened pleading standards to discourage litigation, a.k.a. pleading with particularity.
- Home sewing exception. This expands the fair use-style provisions already in this chapter of the Copyright Act -- and means that the fashion police can't raid crafters' closets looking for illegal
- Substantially identical standard for infringement, largely borrowed from trademark. Probably the most publicly debated issue, and a compromise dating back to the initial hearing on the DPPA when I proposed a narrower "closely and substantially similar" as an opening gambit and a ranking member of the committee floated "virtually identical" as an alternative. There have been many iterations since, resulting in this compromise.
- Initial mood -- which is probably what a true compromise should engender. But nothing that another century of lobbying from fashion designers couldn't fix! In the end, this bill addresses the needs of emerging designers, offers recognition and protection to all creative fashion designers, brings the U.S. in line with IP law in other fashion design-producing countries, closes a legal loophole related to counterfeiting, and will force former copyists to actually design clothing or at least sign licensing agreements -- meaning more jobs for designers and more affordable choices for consumers. Not bad for half a decade's work.
Now can we please get to the champagne and dancing?
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