The world of fashion may soon be substantially transformed by Congressional passage of a proposed new law known as the U.S. "Design Piracy Act."
As every fashionista knows, the fashion industry thrives on trends and therefore on imitation. The question frequently arises, how much is too much? When does "inspiration" verge on theft? That Diane von Furstenberg knockoff you saw for sale at Forever 21 – is that legal?
Today, U.S. law differs markedly from European Union law in that the U.S. does not provide for the legal protection of fashion designs. While certain elements of a garment or fashion item may be protected (trademarks, fabric prints, and accessories, for example), the actual design of a garment cannot be protected.
Passage of the U.S. Design Piracy Act ("DPA") would change this state of affairs, bringing U.S. law more into line with European practice. Despite strong support from the Council of Fashion Designers of America (CFDA), the DPA has repeatedly languished in the halls of the U.S. Congress and has failed to garner widespread support from legislators. Many fashion executives and legal experts continue to express strong skepticism that the DPA has any real chance of adoption. They point out that the U.S. fashion industry has been dynamic and innovative even without copyright-style protection for designs.
Recently, high-profile support from Senator Charles Schumer (D-NY) and Harvard law professor Jeannie Suk has thrust the DPA back into the spotlight. The DPA, it seems, refuses to die. But should it?
Fashion Law Center would like to suggest that it is time for the fashion bar to get involved. Experienced fashion executives and legal experts have a valuable contribution to make, and it is now time to make it.
Two of Fashion Law Center's contributing editors, F.I.T. professor Guillermo C. Jimenez and NY attorney Lara Corchado square off below in a debate on the DPA. Our initial statements are not meant to be exhaustive (a number of related academic articles will be cited and linked), but merely to stimulate you to develop – and express – your own opinion.
Please review the arguments below and then contribute your own opinion by clicking on the Comment button. The editors will respond to your posts.
DEBATE TERMS: Resolved, that the United States Congress should adopt a "Design Piracy Act" which would extend copyright-style protection to fashion designs.
Prof. Guillermo C. Jimenez, Fashion Institute of Technology
Managing Editor, Fashion Law Center
The U.S. should adopt the Design Piracy Act because fashion is a creative industry and fashion designs deserve the same respect from the law as other creative works, such as books, films and sound recordings. I support the DPA for the following reasons:
1. Consistency: Our copyright law is inconsistent if it does not protect fashion designs. Many fashion professionals express skepticism about the DPA because they point out that fashion is extremely imitative. They ask, how could any designer "own" a sleeve or a button-hole? I would ask such people to turn on the radio for a minute, or watch television for two. Popular music today is relentlessly imitative, but even the worst songs and most annoying commercial jingles receive full legal protection (for at least 70 years after the death of the author, no less – as can be attested by the vast wealth of Priscilla Presley and Yoko Ono). Our legislators have seen fit to extend copyright protection to architectural works, software programs, silicon chip designs, and even….vessel hulls. I would submit that the striking creations of Karl Lagerfeld, Marc Jacobs and Jason Wu can compete with the creativity of even the loveliest of vessel hulls, or the most elegant of silicon chips.
2. The Plague of Lawyers: Some opponents of the DPA have warned of the dangers of expanding the scope of legal protection, given the well-known enthusiasm of the legal profession for litigation (that's how we send our kids to college). If we pass the DPA, warn the skeptics (see, especially, Raustiala and Sprigman's classic law review article, The Piracy Paradox), we will increase transaction costs in the fashion industry because everyone will have to factor in additional legal expenses. Yes, it is true that legal protections must sometimes be enforced by lawyers, but is that necessarily a bad thing? My debate opponent, Lara Corchado, has had the opportunity to work alongside the great Floyd Abrams, who has spent 40 years in court defending a little thing called the First Amendment. Moreover, it is not at all clear that the sky would immediately fall in upon passage of the DPA. Last December I taught a seminar in Paris. As far as I could tell, fashion still existed there, though French and European protection is far stronger than our proposed DPA. Fashion has yet to disappear from Italy, either, or from Spain (home to the flourishing copycat Zara) or Sweden (home to the very imitable H&M). Fashion has survived in Europe despite strong IP protection, and the same will be the case in the US upon passage of the DPA.
The potential impact of the DPA has probably been exaggerated by both proponents and detractors. The vast majority of fashion and apparel designs will always be exempt from DPA protection because most designs are simply not original. Everyone will still be free to use traditional sleeves and button-holes – these are in the public domain.
I will concede that fashion titans like LVMH might be tempted to use the new law to "beat up" on small designers (no disrespect to Vuitton and company, but they are quite well-known in the industry for their aggressive protection of legal rights). But then, LVMH already does that anyway, even with the existing state of the law (see the very funny Chewy Vuitton case). With the passage of the DPA, however, the plucky young designer would have something to fight back with. It can indeed be expensive and difficult to enforce legal rights, but that is still better than having no legal rights.
Lara Corchado, Esq., Contributing Editor
Fashion Law Center
The U.S. should not adopt the Design Piracy Act because it will hinder competition and innovation and lead to a proliferation of lawsuits:
1. Trend Setting [Innovation & Competition]: The fashion industry is driven by trends. Critics of the DPA (such as Professors Raustiala and Sprigman) correctly assert that the industry's ability to create trends is based on fashion designers' freedom to copy. If designers' ability to copy were restricted, innovation would inevitably be stifled. Every season we see the emergence of new fashion trends. Those trends are then imitated, exaggerated, toned down or improved upon. A season or two later, the trend dies (only to re-appear years later). A new trend is born and the cycle starts all over again. This fashion cycle is accelerated and facilitated by the ability to copy. Some level of copying has always been a part of fashion design. Designers look to previous eras for inspiration, reinventing and reworking designs by adding their own twist and ultimately creating an original design. For example, the Fall 2010 collection by Marc Jacobs for Louis Vuitton channeled the 1950's with its full skirts and lady-like handbags. The late Alexander McQueen's last collection looked back even further and featured a medieval-themed collection. This type of inspiration and creativity would inevitably be hampered if a designer's ability to copy were restricted by the DPA.
2. Ubiquitous lawsuits: The DPA creates too many opportunities for frivolous lawsuits and legal intimidation. Prof. Jimenez argues that enforcing legal protections is not necessarily a bad thing; however, defending against frivolous lawsuits is. Every new take on a current trend could become the subject of frivolous or harassing lawsuits. The concept of originality in fashion is simply too elusive and the line between "similar" and "substantially similar" is too ethereal. Are we really comfortable with juror # 11 -- Joe the Plumber, let's call him -- making that determination? And do we trust Joe to subtract the unprotected elements from the protected elements of a design when determining degrees of similarity? Proponents of the DPA claim that the proposed law would be especially beneficial for independent fashion designers who do not have the funds to combat knock-offs through expensive advertising campaigns. But legal protection does not equal the ability to enforce one's legal rights. The majority of independent designers do not have the funds to enforce their legal rights through costly and time-consuming litigation. Nor do they have the funds to combat accusations of infringement – even when those accusations are unfair. As a litigator, I would want my clients to understand how difficult (and expensive) it can be to prove that the design in question was actually original. Prof. Jimenez concedes that fashion conglomerates such as LVMH will use the new law to "beat up" on small designers. I suspect that LVMH won't be the only one. Proponents contend that expensive and difficult avenues to enforcement of rights are better than having none but I would argue that the inability to enforce one's rights is tantamount to having none.
Copying in some form or fashion has always existed in the fashion industry and there is no denying that it is tacitly condoned. Just check out any "Steal vs. Splurge" or "Knockoff" columns in major fashion magazines. Copying is what makes the fashion cycle go round, and as quickly as it does. While it is true that European fashion has fared quite well despite IP protection, it is equally true that US fashion has done quite well despite the lack of IP protection. Fashion design in the US has never had legal protection and yet creativity and innovation have flourished. As the old saying goes, if it ain't broke, why fix it?