By Susan Scafidi, a professor at Fordham Law School and the Academic Director of the law school's Fashion Law Institute, the world's first educational center devoted to the emerging field of fashion law. In addition to her foundational articles on intellectual property and fashion design, Scafidi is the author of "Who Owns Culture?" and blogs on law and fashion at www.CounterfeitChic.com.
Intellectual property law is being re-fashioned for a new generation. After epic battles between IP owners and the free culture crowd, a sector with a large economic footprint but a slender jurisprudential silhouette has designed a mode of protection as striking as the introduction of the miniskirt in 1965. It's unmistakably modern, covers all the essentials, but makes a point of leaving quite a bit in the public domain. Call it the new minimalism - courtesy of the not-so-frivolous fashion industry.
Perhaps it shouldn't be surprising that the industry that gave us the punch card loom, the direct ancestor of the modern computer, is on the cutting edge of development in IP. U.S. law, however, has long excluded most creative fashion designs from protection, apart from their trademarked labels and logos, even as other major fashion-producing countries have developed design rights. Europe, Japan, and India all have laws that cover fashion design; France has been protecting its celebrated Parisian couture for over a century. American fashion designers have been seeking legal recognition for at least that long, and they are finally poised to achieve it in a way that alters the contours of IP law as well.
As the nation has transitioned from agriculture to manufacturing to ideas as its primary source of economic growth, the fashion industry has followed. Americans still grow cotton and weave denim, but today, influenced by TV shows like Project Runway, there are far more aspiring designers than tailors or seamstresses. Without IP protection, though, creative garments are easily copied by design pirates who systematically troll trade shows and red carpets looking for the most popular new designs.
Given the speed at which information travels via the Internet, cheap, fast fashion copies can be shipped back to the United States and end up on the street before the original designer has a chance to recover her investment. Some designers even lose wholesale and retail orders after poorly made but otherwise nearly identical merchandise becomes available for sale. This is especially devastating to emerging designers, whose relatively unfamiliar logos are rarely copied along with the underlying articles of apparel, leaving them without even a trademark claim. As one young designer told me in regard to more established, logo-driven companies, "They can just sell their trademarks. We have to sell our designs."
In actuality, the designer was only half right. The absence of design protection also leaves a loophole for trademark counterfeiters, some of whom legally import copies of distinctive merchandise without a fake logo and then add the illegal label later. Such simple subterfuge undermines the Obama administration's new strategic plan to combat counterfeits, and ultimately IP law itself.
The bipartisan Innovative Design Protection and Piracy Prevention Act (IDPPPA) introduced by Sen. Charles E. Schumer will bring fashion design under the IP umbrella while limiting it to the shortest term of protection available under any legal system in the world, three years. It also establishes a high qualifying standard for protected designs reminiscent of patent law, but without an expensive registration requirement. Only designs that are new and original will be protected, and every other garment ever created will remain in the public domain. At the same time, the bill limits violations to substantially identical copies, a standard borrowed from trademark. As elsewhere in copyright, there are blanket exemptions for teaching and analysis; in fashion design, there's even a special home sewing exception for the clever crafter who wants to replicate the runway for her daughter's prom dress or her own wedding gown.