August 13, 2010

Re-Fashioning Intellectual Property Law

Fashion Law, Innovative Design Protection and Piracy Prevention Act


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

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.

In addition to these lessons in legislative restraint from other areas of IP law, the IDPPPA introduces unique new procedural deterrents to litigation. And if a case does go to court, the alleged copyist will have the opportunity to show that that the design in question was created independently of the protected original. In the unlikely case that creative lightning strikes twice, or if two designers following a trend end up with stitch-for-stitch replicas of one another's work, there's no liability. Retailers who inadvertently sell illegal copies are also shielded against legal actions. While the bill's high standards and heavy burden of proof may leave some unique designs and designers unprotected, it is a distinct step forward.

For economy-minded consumers - and who isn't these days? - limited fashion design protection will mean a greater range of affordable choices, part of the kind of progress that IP law is intended to promote. The companies that originally gave us fast fashion - H&M, Zara, Topshop - are European chains, already operating under restrictions on literal copying. As a result, they employ designers to tweak the trends enough to stay out of legal trouble and also pursue licenses with famous names like Karl Lagerfeld to create legitimate versions of designer looks for those of us with couture taste and a basics budget. Some American companies like Target are already creating similar partnerships with editorial darlings like Proenza Schouler; the new IP system will make those deals with big and small designers even more attractive. The end result is more options and better translation of the latest fashions for the general public.

Unlike earlier bills, the IDPPPA represents a hand-in-glove collaboration between historically distinct stakeholders in the fashion industry, creative designers and corporate manufacturers and distributors. Over half a century ago, the A-list wore Paris originals and everyone else settled for copies - some licensed, some not. Original but inexpensive simply wasn't an option. Now that a celebrated designer like Narciso Rodriguez can dress the First Lady and create an affordable collection for eBay in the same year, the old high-low, creator-copyist divisions no longer control. The Council of Fashion Designers of America, by consulting with its fellow trade organization, the American Apparel and Footwear Association, has modeled a new consensus approach to IP law that represents the interests of creators, producers, and consumers alike. As the sole academic at the table during these discussions, my impression is of an industry that has freed itself from the philosophical debate over art versus craft, creativity versus construction, and has instead chosen to recognize and support both.

With the passage of the IDPPPA and the inclusion of fashion design among protected industries, American intellectual property law will enter a new era of restraint likely to serve as a pattern for future legislation. As Coco Chanel, who cleverly declared indifference to copying while privately pursuing legal action against design pirates, reputedly said, "Elegance is refusal." With its careful balance and refusal to accept one-size-fits-all law, the IDPPPA is indeed an elegant solution to the fashion industry's need for IP protection - narrowly tailored for an almost perfect fit.