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.

Susan Scafidi of Counterfeit Chic, law professor and testifier on all things related to fashion copyright – is a supporter of the bill.  You can read her series of posts on the DPPA here: 1, 2, 3, 4.

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?

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9 thoughts on “just a thought – Design Piracy Prohibition Act”

  1. I’ve got a lot of thoughts, but I don’t have enough coffee in me at the moment!

    Frankly, I don’t think that the DPPA is as scary as it is made out to be. I’m not saying it’s therefore automatically a *good* idea (and the introduction of *any* level of protection above what currently exists will always increase litigation costs in the industry, which no one ever seems to want :P), but I see a degree of fearmongering, or, at least, exaggeration, going on. I can see clearly how rub-offs (or copies so close so as to be rub-offs) would be infringement under the act. It is far less clear that all knock-offs, or “inspired by” designs, would be infringing.

    Fun fact: Canada includes copyright protection for “works of artistic craftsmanship”, which provides creators with a greater level of protection than what currently exists in the US — it can apply to an article of clothing, although in situations where the clothing is produced in quantities over 50 other limitations in the Copyright Act might kick in. However, this feature of Canadian copyright law is so seldom used that we don’t know for certain the extent of its applicability.

  2. Great post. It really hits very close to home for me as I was knocked off by a VERY BIG international corporation a couple years ago. Every part of my design was used with a very slight modification to a hem detail. I would go on further with my ‘evidence’ but I guess it doesn’t really matter.

    At the end of the day it was the idea of attempting to go against the big international corporation with offices all over the world with their huge team of lawyers that led me to no action.

    And… it was really hard. I mean it’s hard to explain how hard it is, especially as a new designer – a young designer. It’s a weird feeling of being powerless and small. The idea of copyright for design sounds appealing, but I really know nothing about it.

    Well I guess you’ve given us something to think about.

  3. Hi j.! Nice to see you are still reading & hope all is well with you.

    I think if the act covers rub-offs that makes sense to me – I guess what confuses me most is that parts of a design will somehow be copyrightable. The example with Levis and Howies I linked to is an example of why I find the protection of parts problematic – its because designs are made of parts! Levis trying to enforce protection of where labels can be sewn is like Pepsi trying to own the shape of a circle or something. I just feel that copyright is extending too far – being able to protect a certain combination of parts makes sense to me – protecting the parts themselves seems ludicrous.

    Re: your fun fact – good to know! But the part that makes me wonder is “However, this feature of Canadian copyright law is so seldom used that we don’t know for certain the extent of its applicability.”

    This is why I agree with what I perceive as Susan’s wry cynicism and with you that fearmongering is overblown. It isn’t the laws themselves that are important to me than how they will work practically – and when I imagine how this law will work, my “average joe” imagination and common sense fails me. I’m sure there are lots of laws out there in Europe and elsewhere that exist and still never protect anyone or anything really.

    I guess another point that I’ve been thinking over since I wrote this post is that lately it seems like the free market has been sorting out the piracy problem for itself – designers are doing their own fast fashion collections and sanctioning the reproduction of their designs at lower price points. The internet makes calling out design theifs easier than ever and I would hope the threat of bad PR puts more pressure on all designers to be original. Personally I like the idea of letting consumers and business drive the solution to piracy because it seems better for the industry.

    Christy – I agree litigation seems like a very risky way to react to being knocked off when the balance of power is so skewed. But the feeling of powerlessness would be very hard to deal with – the alternative to doing nothing is doing something. Three off-the-top ideas, FWIW:

    I guess sending a C&D doesn’t cost very much and it lets them know you noticed – they’ll either ignore it or not, but its something you can do that would make you feel more proactive about it. Maybe the other thing would be to take it as a validation of your design instincts – knowing that you came up with that idea independently and they saw value in it. I suppose if you were feeling opportunistic you could knock on their door and say “hey you liked my idea, why not pay for it & hire me to do more”. A third action that is available and not law-intensive would be the guerilla PR campaign like the cupcakes fellow did with Urban Outfitters.

  4. Quick comment, have to do some work!

    I would discount the Levis v. Howies issue. That issue is not about copyright, so it’s not a good example about copyright stretching too far or an example of protection of *parts*.

    There are other, existing, legal mechanisms that exist for protecting things like little red tab labels, the stitching designs on pockets, and even the positioning of decorative items on clothing. It’s a form of trademark protection — protection in what is called the get-up, distinguishing guise, or trade dress of an item: its appearance or its packaging. Entitlement to such protection can be very difficult to prove: it generally requires that the trade dress be distinctive of the producer (survey evidence is often used to show that consumers associate the trade dress with a single source), so the trade dress must have been in use for a while. In the meantime, unless you can scrounge other protection for it (like a design patent, maybe even a copyright registration under the DPPA!), there is a risk that someone else may copy it and cause it to lose its distinctiveness in the public’s mind.

    Thus, a single little label, just lying on the table and disassociated from a garment, is not separately protectable; it’s when it’s sewn onto the garment in a particular place that it becomes protectable.

    What I’m actually trying to say is that the DPPA will not change the existence of these sorts of disputes–they’ll still happen, and in fact for companies that *can* assert trade dress rights, trade dress is preferable because in theory those rights can last forever and will not expire, unlike a DPPA registration (3 years). I would think that in the short term, the DPPA would cause headaches for companies that do rely on trade dress protection, because there will be legal arguments to settle about how the two forms of protection ought to interact.

  5. The not-so-surprising twist here is supposedly the little guy being knocked-off by the big guy. Guess what? This happens ALL THE TIME. In consumer products, this is actually the business model for the Wal-Marts of the world. What can the little guy do? Pray for some design protection legislation that will allow him/her to quickly, simply and cheaply register their design. Fashion designers have no remedy right now – nothing. Consumer products designers have design patents, which take too long to get and cost too much. If you can get proteciton, there are lawyers, and law firms, that will take cases on a contingent fee basis, allowing the little guy to go against the big guy. This will even the playing field somewhat.

  6. I agree. I think it is pretty sad that I – a new designer who’s been pretty lucky with some of the contracts that I got was ripped off by one of my contractors-“ish”. The worst part is the design they ripped off was a one-of-a-kind hand-made design which was auctioned off for $650 in support of breast cancer research and the head designer at the company who was one of the sponsors of the event must have seen my design and knocked it off. So – the poor woman who spent $650 on a one-of-a-kind design ended up seeing her design mass produced. How crappy is that!?

    I am all for some sort of protection – but I guess am a little jaded… and maybe not very hopeful at this point.

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