Will the Design Piracy Prohibition Act Kill Fashion?

What a thing to wake up to. Apparently the Design Piracy Prohibition Act is getting closer to being passed by United States Congress. The Act would extend protection to "the appearance as a whole of an article of apparel, including its ornamentation." It was introduced in 2006, kind of disappeared and now it's back and it looks as if it will become law. In effect, this will result in dire consequences for all independent fashion designers.

Miss Jess, an American independent designer tells Boing Boing that "Under this legislation designers will need to consult with a lawyer throughout the design process to ensure that every new design created could not subjectively be found at a later date to be 'closely and substantially similar' to one protected in the Copyright registry. Further, young, up-and-coming designers would be susceptible to legal intimidation from designing anything new at all, as they would likely not have the resources to fight a legal challenge in court."

And so it would become a part of the cost of doing business - in essence a killer of anyone trying to make it on their own.

Kathleen Fasanella of Fashion Incubator offers this plausible scenario:

Your name is getting out there, picking up more orders everyday and your accounts love you. Now that your fabric samples have arrived, you’re inspired and happily sketching your new styles. This is sure to be your best collection ever! So then you reach for the phone to schedule a slot to have your patterns and samples made. But on the other end, the pattern maker or sewing contractor refuses to work with you. Your heart sinks through the floor, why? You’ve got an established relationship, you’re a great customer with regular work and steady pay but still, no one will take your contracts. In fact, they’re shutting down themselves.

You can read the rest of Fasanella's article if you still need convincing that this is a bad thing.

I don't know exactly who is behind this, but common sense and a healthy dose of cynicism tells me that some of the most powerful American designers have clandestinely banded together and used their influence (ie. loud talking wallets) to convince Congress to pass a bill that in effect benefits them and prevents independent designers from being able to create freely. I can't imagine every big American designer is backing this but I don't hear any of them opposing it, either. Do you? I may have missed something. I hope I did.

What twists the knife deeper is how it's these very people who are ripping off the independents in the first place - if anyone needs protection from having their work stolen outright it's the little guys. Diane von Furstenberg, anyone? And shockingly she happens to be one of the most vocal supporters of the bill. Sorry, Diane, you were a favourite of mine but you have no place on this blog anymore

Update #1:I  was fired up when I wrote this and am now reconsidering. Not because she compensated the designer and admitted fault - this didn't matter to me at the time I wrote this; it is what should be done when you steal another's design. But I'll reserve judgement regarding the inclusion of certain designers on this blog pending how the outcome - should the bill pass - actually plays out.

You can petition U.S. congress here to stop H.R. 2196 from passing into law, created by Fashion-Incubator.com and written by Kathleen Fasanella.

As an end note, what passes as law in the U.S. tends to have global repercussions, so it's up to us supporters of independent fashion to watch what's happening in our respective countries and act accordingly should we notice the introduction of talk around similar, one-sided legislation threatening our vulnerable design talent. See the interview with Xuan-Thu Nguyen below - would we want to lose someone like her?

Update #1 continued (I know, this is getting confusing): A reader by the name of Ms. Shoo - an independent fashion designer - submitted a comment that presents the other side of the argument, which I'm glad for as I'm not a fashion designer and this surely isn't a one-sided issue. Please see her thoughtfully expressed argument and links below.

When composing this post earlier today I couldn't see anything in the writing of the act that appears to blatantly discriminate against independent fashion designers. However, I was heavily influenced by the interpretation of some who strongly feel that it does present serious  implications for independent designers, as referenced above. They are angry, frustrated and frightened and surely they're not simply winding themselves up for kicks. But maybe their concerns are a hypothetical scenario rather than an absolute doomsday?

So now the question seems to be, is it possible that the original work of a designer can be protected by a law such as this without compromising the creative freedom of others?

Update #2: Kathleen Fasanella of Fashion Incubator responded to the comment that subdued me after my rant, and I feel a bit like a ping pong ball batted back and forth with great ferocity. I'm again thinking this is very, very bad, her arguments are too compelling to ignore. And I'd rather it not be true but I am soured on DvF. (Nevermind that she lost all credibility when she signed up for The City! Yeah, okay, I'll watch it I admit, but I can't believe she needs to do a show for cheap publicity or pick on the independents. Like The Fonz when he could no longer start a jukebox with a swift side-punch to the glass, she's lost her 'cool.')

Comments

[alexandra keller]

this is horrible - every major chain will have to shut its doors - everything they make is taken from other designers. it has all trickled down: clothing, shoes, accessories. What next? I mean you have pants. So if someone else makes pants, they'll be in violation? So say bye-bye to Jcrew, The Gap, Forever21 and all the malls across America.

[carlyjcais]

Gosh what a lot to think about! Thanks for posting this...I think I'll be hurting too if this thing passes...I live for finding less-expensive designer-style lookalikes! It seems it's getting harder and harder for smaller designers to gain a foothold what with the catch22 of needing orders to get factoring to pay for manufacturing, where you're usually required to have a history of paying before they'll produce in quantity, which means you can't fill the order which means you let down the boutiques that have ordered and you instantly gain a rep for yourself as someone unable to follow thru. (I speak from experience here!) If you have $ to throw at the problem, you can get your stuff made,fill the orders, and make the sales. Basically it's favor the rich from the outset with the clothing industry...and looks like this law is going to set that in stone.

Carly
http://chicsteals.blogspot.com

http://chicsteals.blogspot.com

[Wicked Halo]

and at the end of the day, the reality of things is that people that buy at Gap, Forever21 and whatever, can't really afford to buy the real high end deal, so big shot designers won't really be able to take any profit from this kind of action :o

[DS De Carvalho]

I wanted to chime in on this as a independent designer who supports this bill, and as a blogger who has been supporting independent + emerging designers for over 3 years.

I don't know if anyone has read this Bill, and what it actually entails, but I would like to direct your attention to few links, one of which has a download of the Bill.

One of my favourite blogs is Counterfeit Chic, by attorney Susan Scafidi, who actually breaks down this law in laymen terms. She also provides a link to download the actual Bill, and she even shares some of the designers who support this bill, and it's a lot — From Jason Wu to Narcisco Rodriguez and even Tory Burch. And plenty more whose names haven't made it to the media yet. I'd be surprised if the entire CFDA membership didn't support this, but I don't want to assume they all do. I've also had the pleasure of letting my attorney confirm that this is more of a "shield than a sword", back when Susan confirmed it had been resurrected.

Currently the US offers no protection for fashion designers, that I'm aware of, well there is a Trademark, but no real intellectual property protection.

Below are the links:

Part 1:

http://www.counterfeitchic.com/2009/04/march_on_washington.php

Part 2 has the link to the Bill for download:

http://counterfeitchic.com/2009/05/march-on-washington-2-project-beltway.html

Part 3:

http://counterfeitchic.com/2009/05/march-on-washington-3-all-american-appeal.html

and the latest:

http://counterfeitchic.com/2009/06/march-on-washington-4-the-tory-burch-society.html

2 quotes from her Counterfeit Chic....

"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.)."

2nd quote:

"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."

I see this as helping me, as a designer. My collection of shoes/handbags under my name will debut in the Fall, and I haven't shared them on my own blog for fear of the knockoffs. I'm sorry if this makes me look bad or rich but I'm neither. I am trying to protect what I spent 4 years trying to get off the ground. I created my own designs, and don't have the capabilities to mass produce my collection. And while I'm all for fast fashion, not at the expense of what I created, and not before it even hits the stores.

We don't allow writers to be copied and other creatives, yet fashion is frivolous, and shouldn't be protected. I'm sorry I will never agree with that. I should be afforded a bit of a shield just like every other creative person. And I'd think the majority of independent designers in the US would welcome this shield, but we all have a right to read that Bill and decide if we support it or not.

Also please note that DVF did settle with the designer, she openly admitted that she and her design team did steal and rectified it. It doesn't make it right, but she did what many who copy don't, and that's compensate the designers they stole from.

As far as I know I won't have to have my attorney at every step of my design process, with this Bill.

Thanks for allowing me to share my perspective.

[dapper kid]

Design copyright in itself is a difficult thing to police. I must admit that the comment above really did help with a few questions I was actually about to ask about the Bill.

I feel most sorry for the independent designers who have a cheap high street store copy their designs. The amount of time and money it takes to get a chain store to remove a copied piece can really wreck an independent designer. Plus by the time they do actually get it removed, the chain store has already made tons of sales, whereas the designer has spent all their money in tackling the situation! I think that the US could really do with the more of the protections provided her in Europe. Although that being said, the protection afforded is unfortunately still not really enough for the smaller independents.

[Denise @ Swelle]

Thanks for your comments, this is a fascinating debate and the outcome of this act becoming law has the potential to affect us supporters of independent fashion as well as the designers who create it.

The best way to participate in the debate is to be informed, and I thank Ms. Shoo for providing the links above.

I can't help but be a bit cynical, I'm afraid that those who need the protection least will benefit and those who need it most will suffer. It's the way it goes these days. I hope that's not the case in the end and everyone in the industry will benefit equally.

[dreamsequins]

It's a very difficult thing to enforce but I'm glad that they are bringing something in to protect independent designers and their work. By the way, nice Teri Agins book cover ;)

[MizzJ]

I totally understand your cynicism, that was the first thing I thought of as well. It will have to be very carefully regulated so that it will protect, but not stifle b/c I can see your doom scenario happening.

[Denise @ Swelle]

D - Ha, all this talk about copyright and I messed with a copyrighted image!

MizzJ - Yes, it certainly can appear to be one thing and in reality become something else. Look at the anti-terrorism legislation! Apples and oranges yes, but it's how a law is enforced when all is said and done.

[Kathleen Fasanella]

M_shoo, a few points on what you wrote:
We don't allow writers to be copied and other creatives, yet fashion is frivolous, and shouldn't be protected.
**Fashion is already protected in several ways, copyright (pattern and fabric design), engineering and design patents and trade dress. Just look up Forever 21, I believe they've been sued over 50 times so far.

Where's the test of originality?
**If you copy x number of words in a row, that's infringement but who owns the common peter pan collar? There won't be a database of previously existing elements open to public use. Experts do NOT get to determine this, it will be the average citizen, you know, like your SO who hasn't noticed you've colored your hair or bought a new outfit. To the average guy, a collar is a collar.

Also please note that DVF did settle with the designer, she openly admitted that she and her design team did steal and rectified it. It doesn't make it right, but she did what many who copy don't, and that's compensate the designers they stole from.
**This is the problem, DVF HAD to come forward, she's the mastermind behind this plan, it just wouldn't do otherwise. The point is, under law, the designer she copied couldn't file a police report saying DVF copied her and have her arrested. No, no, she has to hire an attorney and file a lawsuit. She is not protected otherwise. Considering DVF has boatloads more money, who do you think would win this thing? Most designers I know do not have the money to pursue legal recourse. Having the right to do it and being able to do it are two different things. The problem is people like me -I'm a pattern maker- will not work with a designer unless the design is registered because I don't want to get sued. What is registration going to cost? Estimates are @ $200 per design. My designers (1,000 belong to my organization) don't have the money.

Let's say you go through all the hassle and expense of filing a registration. When will you know you're approved? Copyright takes 4 to 18 months. Patents take several years. How long will design registration take? How expensive do you think it will be to search the database and then get a legal opinion from an attorney that your design is substantively different? Let's say you register and go ahead and produce a sample, hoping you will be approved. You won't get approval until after you've already started selling it and then what happens if it is denied? Well, then you're guilty of infringing on something you either don't agree is similar and then you're a criminal, guilty of piracy.

CFDA designers are socialite labels that don't cut dresses larger than a size 12. The average woman wears a size 14. What are they going to wear?

Look, independent designers are my livelihood. If they go under, I go out of business. When I first heard about this law, I was THRILLED. I thought, finally, something to protect the designers I love and adore (and live off of). Looking into it a little more, I realized this would hurt MOST of them more than it would help them. Independent designers are my #1 priority. If they go under, I do too. This law will kill more creativity and innovation than it will save.

[claire]

@ m_shoo: while I think that protection for designers sounds great in *theory*, what people (this includes Senators) are missing is what the impact of this law would be in *practice*

I think what you need to keep in mind is that the writer of Counterfeit Chic is a *lawyer* and the passage of this law is going to bring her boatloads of business.... from designers with the boatloads of money to retain her services. Are *you* in that category?

I'm a fan of Kathleen Fasenella, consider her a rare gem of an industry expert and trust her assessment of the real life implications for the independent designers she's poured time and energy into championing. I've been posting on this topic on my own blog, www.collectiveselection.com

The ability to leverage one's original designs for profit has *never* rested solely in the ability to come up with said designs, but to get the manufacturing, marketing and distribution mechanisms behind you to profit from volume sales. Do you really think the CFDA designers whose names we all know are truly 'independent?' Maybe a handful of up and comings, but their inclusion into CFDA is the start of their ascent into the corporate backed infrastructure; the wizard behind the glamour curtain that no one wants to acknowledge.

While I agree that it is lame for Forever 21 (or similar stores) to take shortcuts and blatantly copy designers big or small, the passage of this bill will do far, far more harm than good to independent designers. It will serve only to create a bureaucratic legal morass of expensive obstacles designed to keep aspiring designers *away* from access to the infrastructure necessary to be successful.

Mark my words, what you will absolutely see is a flood of lawsuits from corporate backed design houses designed to intimidate smaller designers encroaching into the market. Hitting someone with a mandate to spend time and money defending a lawsuit is a great way to stop them in their tracks.

Take a look at this NY Times article from 2007 about Levi's going after dozens of indie premium denim designers for trademark infringement. http://www.nytimes.com/2007/01/29/business/29jeans.html?_r=1&scp=1&sq=levis%20sues%20trademark&st=cse
These premium denim designers are in no way trying to fool customers by imitating Levis... because Levis are uncool and their brand has been diluted. They were trying to gain status and recognition for their own label. But Levi's missed the premium boat and rather than innovate on their own, they're just sending in the mobsters to break the legs of the competition. If this bill passes, we'll see an explosion in this kind of litigation.