Econ Discussion /Business Finance – Economic
Schumer Bill Seeks to Protect Fashion Design
By CATHY HORYN
The American fashion industry has been pushing hard over the last four years for copyright protection for its designs. An earlier bill in the House
was deemed too broad; clothing makers argued that protection against knock-offs would only encourage frivolous lawsuits from people
claiming they had the idea first. Today, after a year of negotiations, Senator Charles E. Schumer introduced a bill that seemed to satisfy the
different sides of the fashion industry — and may provide some protection, too.
The bill, the Innovative Design Protection and Piracy Prevention Act, has the support of the Council of Fashion Designers of America (CFDA),
whose individual members represent the creative core of the industry, and the American Apparel & Footwear Association (AAFA), which
represents more than 700 manufacturers and suppliers and by its estimate accounts for about 75 percent of the industry’s business. The
AAFA had argued that the House bill was too broad and would expose its members to lawsuits.
Senator Schumer brought the two groups together. “In the first go- around there was nothing that gave our members protection,” Kevin
Burke, president and chief executive officer of the AAFA said, adding that there was “a vast difference” in the Schumer bill. “It provides the
protection for unique design.”
The proposed legislation provides very limited intellectual property
protection to the most original design. A designer who claims that his work has been copied must show that his design provides “a unique,
distinguishable, non-trivial and non-utilitarian variation over prior designs.” And it must be proven by the designer that the copy is
“substantially identical” to the original so as to be mistaken for it. The bill would cover all fashion designs, including products like handbags,
belts and sunglasses, for a three-year period from the time the item is seen in public—on a runway, say. Factors than can’t be used in
determining the uniqueness of a design are color, patterns and a graphic element.
In other words, the bar is extremely high to determine what qualifies as
a unique and distinguishable fashion design. And the burden is on the innovative designer.
A beautiful dress worn by a celebrity at an important red-carpet
occasion most likely wouldn’t meet the test. But a jacket that has an original cut — one example might be Martin Margiela’s peaked shoulder
jackets from two or three years ago — could easily meet the standards of something unique and non-trivial. The Margiela jacket was widely
copied and certainly the knobby shape of the shoulder was original.
Steven Kolb, the executive director of the CFDA, seemed satisfied with
the Schumer bill, which has bipartisan support. “The fact that there will be a law in this country, as there are in other developed countries, will
make people think twice” before they copy someone, he said. “The law in itself is a powerful deterrent.”
Senator Schumer acknowledged that not every creative designer will feel that he or she is sufficiently protected but he said “the bill is a good first
step.” He expected the bill to be passed this fall.
Narciso Rodriguez, who was among the designers urging protection,
said in an email: “It’s an important moment for American designers that this bill is one step closer to becoming law. This protection has been
necessary for so long and I am happy to see how the fashion industry’s efforts have made a difference.”
Extending copyright protection to fashion has been a hard sell, in part because consumers ultimately benefit from such copying.
In a post this spring on the Freakonomics blog, Kal Raustiala of the UCLA Law School and Chris Sprigman of the University of Virginia Law School
pointed to the paradox in piracy protection:
“The interesting effect of copying is to generate more demand for new
designs since the old designs—the ones that have been copied—are no longer special. The overall result is greater sales of apparel.”
Perhaps the upside for American fashion is that it will encourage designers to be more innovative.
