August 2010 Archives

The name wasn't my idea -- let's get that out of the way first thing.  But the new Innovative Design Protection and Piracy Prevention Act, IDPPPA or S.3728 to friends, is a significant step forward for both U.S. intellectual property law and for the fashion industry. 

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. 
Something new:
  • 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 downloads dresses.
Something borrowed:
  • 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.
Something blue:
  • 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.
So, in the words of the bard, let me not to the marriage of true minds admit impediments.  Representatives from two sides of fashion, the CFDA and the AAFA, have come together, with witnesses and testimony from all angles marking their union.  And what Senator Schumer has joined, let no vote put asunder.

Now can we please get to the champagne and dancing?

Related posts: March on Washington 4, March on Washington 3, March on Washington 2, March on Washington, Washington Fashion Week 2Washington Fashion Week, Ms. Scafidi Goes to WashingtonHow I Spent My Summer VacationI'm Just a Bill

More Knockoff Nuptials

Bridal designer Vera Wang, who recently added Chelsea Clinton to her silk-swathed sisterhood, has called the march down the aisle every woman's red carpet.  And where there's a celebrated red carpet design, ABS by Allen Schwartz is there to knock it off.  It's as predictable as ants at a picnic.

Chelsea_Clinton_wedding_screenshot.png
Sure enough, just a day after the exclusive event, ABS announced that it would be offering a version of not only Chelsea's wedding gown but Hillary's Oscar de la Renta as well.  (Who knew that our sometime sartorially stunted Secretary of State would one day become a fashion "inspiration" in her own right?)  Perhaps a line of lavender bridesmaids' dresses will be available for those who'd like to knock off the Clinton-Mezvinsky nuptials in their entirety.  

Were Allen Schwartz to look up from his frantic production of knockoffs and even more frantic production of press quotes, he might note that his efforts are part of a long history of attempts to copy society wedding gowns despite efforts to keep such ceremonies private.  In The Age of Innocence, Edith Wharton painted a similar scene involving an awning that extended from the curb to the door of the church, shielding the bride from onlookers:

The idea of doing away with this awning, and revealing the bride to the mob of dressmakers and newspaper reporters who stood outside fighting to get near the joints of the canvas, exceeded even old Catherine's courage, though for a moment she had considered the possibility.  "Why, they might take a photograph of my child and put it in the papers!" Mrs. Welland exclaimed when her mother's last plan was hinted to her; and from this unthinkable indecency the entire clan recoiled with a collective shudder.   
That was 1920.  And yes, folks, it's still legal in the U.S. for copyists who manage to get a look to sell knockoffs -- pending possible passage of the Design Piracy Prohibition Act.  

So much for Vera's legit licensing deal with popularly priced David's Bridal, which presumably hoped to cash in on the Clinton wedding cache itself.
 

P.S.  Photos to follow -- Allen's presumably still stitching!