June 9, 2009
just a thought – Design Piracy Prohibition Act
Six weeks back, intrepid journalist Nathalie Atkinson uncovered a knock-off story with a twist. Toronto label Mercy’s jacket design was knocked off Diane von Furstenburg. To add insult to injury, the style in question was the hero of a PR campaign involving a hit television show and the cover of a major American fashion magazine. DvF’s response was sophisticated and swift – she compensated Mercy for a top-secret amount for the unauthorized use of their design. Anything less would have been unseemly as she is the president of the CFDA and instrumental in spearheading the Design Piracy Prohibition Act, an amendment to US copyright law intended to discourage knock-offs. I wonder why the compensation amount DvF paid Mercy is undisclosed – I would hope that it is at least $250,000 as per the proposed DPPA. BONUS: Nathalie digs deeper into the copyright angle in a follow-up article – How this jacket got jacked.
As I followed the story very closely I exchanged a few emails with Nathalie about the details – and the one conclusion I reached was this: frankly, I don’t feel that I am smart enough to have an opinion on the Mercy/DvF story and the DPPA. I am no legal eagle – more like a legal turtle. I do my best to keep up to date with a working knowledge of copyright and ethics as it is very important to my work as a fashion illustrator who has many fashion designer clients. Please take this into mind as I attempt to write about a very complicated and political subject as I understand it. If you have a more informed opinion I welcome you to share it in the comments.
There are two very intelligent American bloggers who are must-reads for opinions and information on the DPPA.
Kathleen Fasanella of Fashion-Incubator, patternmaker, author and advocate for designer-entrepreneurs, small service providers and workers in the American fashion industry, is an activist against the bill. You can read her recent posts on the DPPA here: a good idea while it lasted and proposed law to destroy 90% of design businesses.
I encourage you to read all of these posts and the DPPA itself. I respect both Susan and Kathleen very much and can see the value in each perspective. As I have tried to develop my own point of view I find it falls close to the middle – skewing towards “against” with a heavy dose of cynicism – though as a Canadian I am sure my opinion is moot anyway. Here is the gist of my take: the intention behind the DPPA may seem good, the practical application is so complicated that successful protection of fashion designs is basically impossible. I don’t think it will be as dire as Kathleen predicts or as helpful as Susan hopes. Overall, I bet it will benefit the lawyers more than the fashion designers.
The comments I find most telling in Susan’s breezy, pun-filled posts are the asides (emphasis mine):
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.).
Much like the copyright laws that apply to copyrightable media (photography, illustration, writing), it seems the laws that apply to fashion design across the Atlantic look good on paper, but rarely offer real protection to creators outside of behemoths like Disney. If someone plagiarizes an image or an idea and they get caught, they don’t get arrested and go to jail. The victim has to take the infringer to court. It is a system that is usually in favour of those with lots of money and lots of lawyers. Sure, sometimes the little guy can stage a guerilla PR campaign and get the big guy to lay off or maybe even get an undisclosed settlement – but for the most part if some big corporation steals your art or accuses you of stealing theirs, tough.
In reality, lobbying for the DPPA is like lobbying for, say, world peace. It would be nice, wouldn’t it?
Kathleen’s posts are sincere and angry, ranging from passionate pleas to righteous screeds. She has a major message to communicate, on behalf of the majority of the fashion industry in the US, which is getting overlooked in the media coverage of this story.
Kathleen points out that the CFDA, which is lobbying for the DPPA does not represent the US fashion industry as a whole. The CFDA is an invite-only organization representing mostly society designers and media in New York City – very influential but not at all inclusive. The AAFA, another major industry organization, is against the bill. Considering how much the bill will affect the entire fashion industry in the US, it seems that the entire industry’s opinions should be considered, right? The major problem with the DPPA is that like copyright itself, it tends to favour the moneyed and politically influential. For something that is supposed to be about justice, that is anything but fair.
Lately in US politics there has been a lot of emphasis on protection – in trade, in borders, and in this bill. It is all in an effort to revitalize the economy, but to me this emphasis seems misguided and counterintuitive. Innovation and entrepreneurship thrive on the freedom of ideas. Many famous characters and iconic garments were cobbled together – knocked off if you will – from other ideas that came before. Now those corporations that “own” these ideas wield their legal muscles to stifle artists and entrepreneurs from doing the same thing. Copyright is a good idea – intended to make sure that creators are compensated for their work – but it is only successful when it offers a careful balance between protecting ideas and allowing ideas to be shared.
The nature of fashion makes imagining the practical application of copyright almost unfathomable. The major basis of fashion is the trend – where many designers interpret a similar idea in one season and encourage fashion followers to buy in. How would copyright in fashion sort out when something is a trend and something is knocked off? It is worrisome, as Kathleen points out, that the task of discerning a knock-off will be based on inexpert opinions.
If you think I’m exaggerating the detrimental affects this legislation would impose, an IP attorney has informed me that the standard for determining the innovation of a given design is not based on our expert opinion. Nope. … The legal definition is based on the opinion of a non-expert, what the average Joe thinks looks similar.
What about fashion’s Big Dirty Secret – that everyone knocks off everyone else? Marc Jacobs does it, DvF does it – it isn’t just the guys with “LV” bags in their trunks and Forever 21. Every department store and retail chain has “buyers” who shop and bring back designer items from boutiques and key items from the competition to be taken apart and analyzed down to the yarns-per-inch. Start-up outfits take tearsheets from magazines to their sample-makers and say “I want it like this but different”. Newbie designers in interviews say they are “inspired by Alexander McQueen”. The fact is that most consumers when they shop for clothes want to buy what is familiar, not what has never been seen before.
Most inexplicable: even parts of a design will be able to be registered. (!?)
So how would trying to enforce copyright to that extent benefit the industry, or the consumer? It seems to me that the entire fashion system would have to be recreated from scratch. How would that work exactly?
In my opinion, the DPPA is a very risky experiment to try in a very fragile economic time. It will be interesting to see what happens. What do you think?