March on Washington 2: Project Beltway

If ever an organization needed to be exhorted to "make it work," it's the U.S. Congress, which for the third consecutive term is taking up the issue of extending intellectual property protection to fashion designs.  Happily, America's dean of design, Tim Gunn, and Project Runway season 5 winner Leanne Marshall joined forces with CFDA executive director Steven Kolb for a visit to Capitol Hill today.  No doubt Tim, who has lent his considerable authority to the cause on a previous occasion, will also take the opportunity to share his sartorial wisdom with Beltway insiders.

Tim has spent over 20 years educating aspiring fashion designers; Leanne is one of the extremely talented creators who have benefited from his guidance.  Together they have a great deal of insight into what it takes for a young designer to succeed -- and how the law can assist in those efforts.  (Leanne's Fall 2009 collection, by the way, is lovely.  Just imagine the hours it took to create this many-petaled gown, which I had the pleasure of viewing at her show along with Tom & Lorenzo (formerly the Project Rungay Boys), Ann, Barb, and Emmett.) 
The new and improved Design Piracy Prohibition Act, H.R. 2196 (again, apologies for not being able to share it during the drafting process), would -- like its predecessors -- protect original, registered fashion designs for 3 years via an amendment to the Copyright Act.  The new elements of the bill, developed in conversation with members of the industry, include the following:
  • an enhanced definition of a fashion design,
  • a heightened standard of infringement ("closely and substantially similar," previously part of the Senate version of the bill),
  • specific defenses to infringement, such as merely reflecting a trend and independent creation,
  • increased penalties for false representation,
  • a registration period of 6 (rather than 3) months, and
  • creation of a searchable database of registered designs.
The proposed protection, while a significant step for the U.S., is still much less than that afforded designs in Europe, Japan, and India, among other jurisdictions.  In the E.U. for example, all designs receive 3 years of protection whether or not they're registered. Optional registration can extend that protection for up to 25 years.  Furthermore, not only designs as a whole, but also individual original elements of those designs, are protected.   And somehow, none of this has inhibited the development of wildly successful fast-fashion companies like H&M (Sweden), Zara (Spain), and Topshop (U.K.). 

How will the DPPA work in the U.S.?  Ideally by changing the behavior of determined design pirates, whose business models are currently based on cherrypicking the season's best designs and producing cheap copies, often before the real things can even make it into stores.  Once the law creates liability, these copyists will have to actually hire designers of their own and make at least a few changes, or else risk paying out their profits to the rightful owners of the original designs.  Or, as Tim Gunn succinctly puts it when describing the DPPA, as a shield rather than a sword. 

In short, the Design Piracy Prohibition Act represents the cutting edge of intellectual property protection, narrowly tailored to suit a seasonal industry.  All puns intended. 

Related post:  March on Washington