By Kathryn Tasker on July 30, 2009 – 11:45am

Fashion is a business in which copying plays a major role in driving new styles and trends. Marc Jacobs putting his own twist on a classic Chanel design; fashion on the streets inspiring fashion on the runway; low-end retailers democratizing high-end trends by selling more cheaply made versions of designer apparel—these are all integral parts of the fashion ecology. It is thanks to copying that trends have such a frantic life cycle.

They start by allowing all designers and consumers to capitalize on what’s hot, without breaking the bank. Just as quickly, trends fade away because they become ubiquitous, because they have been copied too many times; this, in turn, stimulates new innovation and design and the process starts all over. This is the “piracy paradox” that law professors Chris Sprigman and Kal Raustiala talk about in their paper by the same name, addressing the possibility that copying does not deter innovation but may actually promote it.

Nevertheless, some well-intentioned yet misguided designers are advocating for legislation called the Design Piracy Prohibition Act (DPPA) that would greatly upset the fast-paced creative cycle. The legislation (H.R. 2196) would extend copyright protection to fashion designs, with the intention of preventing exact copies of original works.

While the bill may sound like a good proposal to some, the legislation would actually harm the very industry it purports to protect. The goal is to safeguard original designs against exact copies by giving them a three-year copyright, and to acknowledge original designs as the pieces of art that they can be.  But the consequences would be potentially disastrous.

Here’s one big complication (of many) in the bill. After a design is publically released a designer has a six-month window to register the copyright. This would effectively allow for retroactive lawsuits and heighten the legal frustrations all designers would face. Even if a designer sought legal counsel to ensure that none of the designer’s new designs were “substantially similar” to registered copyrights (the vague standard used to determine infringement), there’s still a chance that you could later be sued for a copyright that hadn’t been registered yet. During a Washingtonpost.com online chat two years ago, Tim Gunn, chief creative officer of Liz Claiborne (but more popularly known for his role on Project Runway), said that if fashion “copyrighting is enacted, then I shudder at the prospect of zillions of cases of litigation!”

The American Apparel & Footwear Association (AAFA), a national trade association that represents the interests of the major retailers and manufacturers, has come out against the bill. In a letter to Congress this April, the AAFA urged Members to oppose the legislation, saying that it would have a chilling impact on the design process and raise costs for designers and consumers alike:

“Currently, fashion designers draw inspiration from a wide variety of sources, including… other designs…

“The practical effect of this law would be to outlaw inspiration, which is the driver of all fashion design. It would also have a detrimental effect on consumer choice, particularly lower income consumers, as companies try to ensure new fashion trends do not violate these new and ill-defined legal liabilities.”

The letter also highlights the fact that designers already have various means to protect their creations—trademarks, patents, trade dress, and even copyright protection (of textiles, for example).

Even designers like Isabel Toledo, popularly known for the green dress and coat that Michelle Obama wore to her husband’s inauguration, are voicing their fears about the possible consequences of the bill for designers and consumers alike. Toledo expresses her worry that the legal burden on new designers would be disproportionate. “Half of these young designers can hardly pay their sewers,” Toledo says. “So you’re going to take that money and go to court?” Money that should be spent on developing their designs would go toward defending themselves against lawsuits. Her husband Ruben Toledo, who also opposes the bill, points out the disadvantage to consumers, saying that “a woman knows when she’s buying champagne and when she’s buying soda-pop. It’s two different markets. But why shouldn’t a woman have the right to drink Coca-Cola when she feels like it and champagne when she wants to? That’s the American way.”

The DPPA is yet another example of the mindset that because some copyright protection is good for creativity, more of it must be better. Experience has proved this proposition wrong. The fashion industry has thrived in the absence of heavy copyright restrictions, and there is a good possibility that a bill like the DPPA would be detrimental both to the creative process and the profitability of the industry. This is the third year in a row that such a bill has been introduced—let us hope that it is also the third year in a row that it fails to pass.

At the end of each Project Runway episode, Heidi Klum tells another rejected designer “auf Wiedersehen.” It’s time for Congress to give the auf to fashion copyright.

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