Piracy Funds Fashionistas

August 10, 2010 2:24 PM

Stop Fashion Piracy! Senator Chuck Schumer and ten co-sponsers have introduced the Innovative Design Protection and Piracy Prevention Act (Govtrack). Similar to legislation from previous Congressional sessions, this would extend copyright protection to fashion designs. Currently, the fashion industry does have trademark protection, which allows legal recourse for designers and brands to go after counterfeiting, but designs and concepts are free to be imitated. The bill has the support of the Council of Fashion Designers of America and the American Apparel and Footwear Association. This is the cumulation of a multi-year effort to extend copyright protections to fashion designers (that included sidestops where they tried to co-opt Michelle Obama into their efforts and where one of the top fashion copyright proponents gets caught copying other people's designs), and would change an industry that historically has worked within a dramatically different culture from other creative industries.

Of course, not everyone is excited about the idea. TechDirt has actually had surprisingly robust coverage of this issue -- they're not for it, if you can guess. Here is USC's Johanna Blakley giving a wonderful TEDtalk about the impact of the lack of IP law on fashion culture and how it promotes innovation in the industry.

A list of some of the legislation's provisions from Susan Scafidi over at CounterfeitChic.com:

Something old (from the previous bills):
• Short, 3-year term of protection.
• Structure. It's an amendment to chapter 13 of the Copyright Act, which currently applies only to vessel hulls.
• High standard to qualify for protection, amounting to originality plus novelty. New and unique designs will qualify for protection, while everything else remains in the public domain.
• Independent creation defense. As in copyright, it's theoretically possible for creative lightning to strike twice, without triggering liability.

Something new:
• No registration, period. This eliminates a previous hurdle, goes one step beyond copyright, and benefits emerging designers, my greatest personal concern over the past 5 years.
• Heightened pleading standards to discourage litigation, a.k.a. pleading with particularity.
• Home sewing exception. This expands the fair use-style provisions already in this chapter of the Copyright Act -- and means that the fashion police can't raid crafters' closets looking for illegal downloads dresses.

Something borrowed:
• Substantially identical standard for infringement, largely borrowed from trademark. Probably the most publicly debated issue, and a compromise dating back to the initial hearing on the DPPA when I proposed a narrower "closely and substantially similar" as an opening gambit and a ranking member of the committee floated "virtually identical" as an alternative. There have been many iterations since, resulting in this compromise.

Something blue:
• Initial mood -- which is probably what a true compromise should engender. But nothing that another century of lobbying from fashion designers couldn't fix! In the end, this bill addresses the needs of emerging designers, offers recognition and protection to all creative fashion designers, brings the U.S. in line with IP law in other fashion design-producing countries, closes a legal loophole related to counterfeiting, and will force former copyists to actually design clothing or at least sign licensing agreements -- meaning more jobs for designers and more affordable choices for consumers. Not bad for half a decade's work.

posted by Weebot (53 comments total)

Death to fashion!
posted by TwelveTwo at 2:26 PM on August 10, 2010 [4 favorites]

I'm for anything that prevents the 70's from coming back into style.
posted by Pastabagel at 2:31 PM on August 10, 2010 [1 favorite]

God, talk about the power of presentation; typically I think I'd be against this, but the something old/new/borrowed/blue has charmed me.

This is why I would be a crap Congressperson.
posted by MCMikeNamara at 2:34 PM on August 10, 2010 [1 favorite]

1. I thought the whole point of fashion was for everyone to follow the same trends. Great quote from Harvey Danger: "Fashion is the art of brainwashing the proud."

2. One man's counterfeiting is another's free market. If something can be sold for a profit at a fraction of its cost, is it really worth the cost? (see also: the BMI thread from yesterday)
posted by Eideteker at 2:34 PM on August 10, 2010

Can we derail this thread into where to get the best knockoffs?

Anyway, on the surface this seems good, just like anything defending IP seems good on the surface. But then again, I can easily see how this can devolve into MPAA/RIAA-levels of greedy corporate nonsense. The big firms hiring teams of surveyors and lawyers to locate barely-threshhold-levels of what is considered to be infringement and using it to outrageously fine smaller designers and the boutiques that carry their clothes.

Oh and the "not" link is busted.
posted by griphus at 2:36 PM on August 10, 2010 [2 favorites]

High standard to qualify for protection, amounting to originality plus novelty. New and unique designs will qualify for protection, while everything else remains in the public domain.

This is what undermines the intention, in my opinion. Who exactly determines what qualifies, or who is good enough to be in this category? Prada or Calvin Klein might be wonderful, but so might Mary's Boutique, and it doesn't mean that big houses with lots of cash should be the only ones protected.

"Originality" and "novelty" are subjective, as far as fashion goes, and much of fashion is derivative anyway.
posted by cmgonzalez at 2:38 PM on August 10, 2010 [1 favorite]

One man's counterfeiting is another's free market. If something can be sold for a profit at a fraction of its cost, is it really worth the cost?

Fashion is a different animal than most industries with regard to intellectual property. You have, on one hand, a constituency of individuals who will always buy the knockoff and on the other those who go through lengths to make sure to never buy the knockoff. The only thing that can change the minds of either is a boost or drop in disposable income.
posted by griphus at 2:39 PM on August 10, 2010 [6 favorites]

I reviewed a submission to our journal on this topic a few years ago when I was in law school. Unfortunately we had to reject it (it was a law and technology journal, and the IP -> technology connection was just a liiiiittle too tenuous). It was a great and interesting read though. I'll be interested to watch this area of the law unfold.

Unfortunately, the Republicans don't give a crap, and there's no strong Libertarian presence in Congress, so public debate is unlikely to really touch this. Pity.
posted by thesmophoron at 2:40 PM on August 10, 2010

Sounds like bad news to me. Some industries don't enforce their IP rights through the legal system for good reasons - see comedians, for instance.
posted by r_nebblesworthII at 2:44 PM on August 10, 2010 [1 favorite]

Blakely had this right. Lawyers will be rubbing their hands together with glee. Bring on the alla (Rucker).
posted by unliteral at 2:49 PM on August 10, 2010

I can't afford designer clothes, so I don't like this. Trends always trickle down to the cheaper stores -- that's how they catch on with the populace. I really, really wanted a Herve Leger bandage dress, but they're thousands of dollars, so I found a very similar dress at Express for $85.
posted by Put the kettle on at 2:53 PM on August 10, 2010

Watch out for the Fashion Police
posted by Blazecock Pileon at 2:53 PM on August 10, 2010

The fashion industry: just like the music industry, only better dressed.
posted by zarq at 2:53 PM on August 10, 2010

We'll always have Canal Street, even if it's not in plain view. There is no way that everyone who wants a Brand Name Item can pay Brand Name Prices, so those who cannot afford the real thing find comfort in buying heavily discounted/reasonably priced knock-offs. And then there are the deliciously two-faced anti-"design theft" artists who pay of the lesser-knowns when caught (linked in the OP, re-linked because it needs re-emphasizing). As mentioned at the end of the linked TechDirt page: "Once again, all this really highlights is that the point of IP laws is to let incumbents keep down upstarts, rather than encouraging new creativity."
posted by filthy light thief at 2:54 PM on August 10, 2010 [2 favorites]

There's so much prior art out there as to make this virtually useless (except for the lawyers).
posted by Civil_Disobedient at 2:56 PM on August 10, 2010 [1 favorite]

Pam, your pumps: I want them.
posted by Azazel Fel at 2:58 PM on August 10, 2010 [1 favorite]

In other words, the lawyers who supposedly work for the American fashion industry just passed a law giving themselves a big fat raise, while cutting their employer's throat abroad? Do American designers sell much abroad anyways?
posted by jeffburdges at 3:00 PM on August 10, 2010

This will end up working just like software patents. Companies will collect a portfolio of fashion 'IP' and not produce anything, and then as soon as someone scores a hit design, they will scour their collection to find something to sue them with. Only companies with big wallets or huge portfolios of 'IP' will be able to stay in business.

If small fashion designers think this will help them, they are deluding themselves.
posted by empath at 3:04 PM on August 10, 2010 [8 favorites]

In other words, the lawyers who supposedly work for the American fashion industry just passed a law giving themselves a big fat raise

s/passed a law/introduced a bill/

Having been introduced, its ex-ante odds of passage are about 10%.
posted by ROU_Xenophobe at 3:10 PM on August 10, 2010

There's so much prior art out there as to make this virtually useless (except for the lawyers).

lolwut? 'prior art' is a patent principle. it has nothing to do with copyright protection. at all.
posted by thesmophoron at 3:11 PM on August 10, 2010

jeffburdges: Introduced, not passed. Though it has third highest-ranking Senator in the Chamber as its benefactor.

zarq: The fashion industry: just like the music industry, only better dressed.

They're not, but the desperately want to be. I think that one of the issues hit upon here, and one that the Blakley TEDTalk highlights so well (that video is FPP-worthy in its own right), is that copyright has become counterproductive. Ostensibly, the rationale for extending copyright is to provide incentives for cultural innovation, but why would we need that for an industry that is ferociously competitive and ever-changing. Call the fashion industry whatever you want, but stagnant wouldn't be the first word to come to mind.

This should apply well for our talks about music and film copyright. I think the most striking visual in Blakley's talk is the comparison between the grosses of industries with low IP protection versus high IP protection. Now, it's not an apples-to-apples comparison, obviously, but it does suggest that the contribution to economic and cultural activity that IP laws are suppose to promote are negligible, at best.
posted by Weebot at 3:12 PM on August 10, 2010

While we are here, let's also copyright flavors of cheese, wine, and spirits. It is simply unfair for a consortium of old families to develop the unique flavors of cognac only for some upstarts in California to make knock offs for a fraction of the cost and sell it under a different category. Why should Tillamook have to perfect their cheddar only for it to be mimicked by a competitor, can't they develop their own cheese flavor? There is only one Chateau Lynch-Bages, the imitators are just thieves.
posted by TwelveTwo at 3:14 PM on August 10, 2010 [1 favorite]

Even more information and Johanna Blakely talks are available at the website for the "Ready to Share" IP and fashion conference.

I had an "IP Colloquium" class in law school, in which professors writing papers in their field would submit them to us for a roundtable discussion. When Scafidi came to talk about hers, advocating for exactly this legislation, she had absolutely no patience for questions as to whether copyright protection is something fashion actually needs. When it came to more acceptable topics, such as the details of the length or scope of protection, she was rude and dismissive of viewpoints not in line with her own. She had not come for criticism, she had come to have us nod and smile at her.

I would have loved to have heard some answers to the following questions:

-Is fashion suffering from a lack of innovation?
-Are small fashion designers unable to enter the market because of knockoffs?

As Johanna Blakely explains in her excellent TED talk, above, I'm guessing that the answer to these questions is "no."
posted by Grimp0teuthis at 3:21 PM on August 10, 2010 [2 favorites]

More from Blakley from EconTalk.
posted by Weebot at 3:41 PM on August 10, 2010

Time to link, once again, to my friend Chris Sprigman, a UVA law professor and all around insanely bright guy who writes about the "cracks" in IP and how industry norms arise to deal with them. He writes largely about two such cases, fashion and stand-up comedy. His work is absolutely fascinating since he has a strong "law and econ" bent but a highly practical view of copyrights and IP. His view, greatly oversimplified, is that fashion and stand up thrive, even absent (practical) copyright protection because of the social norms that they create within their environments, and that those norms create greater incentives to innovation at lesser cost than legislation and litigation. Blakely cribs mercilessly from him (IMHO), but it's worth reading the original if you have the time and inclination to work through the economic analysis.
posted by The Bellman at 3:48 PM on August 10, 2010 [3 favorites]

While we are here, let's also copyright flavors of cheese, wine, and spirits. It is simply unfair for a consortium of old families to develop the unique flavors of cognac only for some upstarts in California to make knock offs for a fraction of the cost and sell it under a different category. Why should Tillamook have to perfect their cheddar only for it to be mimicked by a competitor, can't they develop their own cheese flavor? There is only one Chateau Lynch-Bages, the imitators are just thieves.
posted by TwelveTwo at 3:14 PM on August 10 [1 favorite -] Favorite added! [!]

Well, why not? Even if copyright won't cover flavors, cheese, wine, and spirits are all the results of particular industrial processes, which are certainly patentable. Like the fashion and comedy industries, the only thing stopping it (probably) are the industry norms and culture.
posted by r_nebblesworthII at 3:56 PM on August 10, 2010

As long as they keep their hands of my grubby sackcloth, I'm alright with it.
posted by eegphalanges at 3:58 PM on August 10, 2010

Hands OFF my sackcloth, that is. And my hairshirt.
posted by eegphalanges at 3:59 PM on August 10, 2010

lolwut? 'prior art' is a patent principle

/smacks self hard
posted by Civil_Disobedient at 4:07 PM on August 10, 2010

Given how much fashion has dramatically evolved over the years, and how fashion designers have proliferated and gained in wealth and fame, it's hard to see how this uncontrolled market has really hurt them in any general sense. Perhaps other artistic industries should shift toward fashion's example rather than the other way around.
posted by swimming naked when the tide goes out at 4:10 PM on August 10, 2010

Well, why not? Even if copyright won't cover flavors, cheese, wine, and spirits are all the results of particular industrial processes, which are certainly patentable. Like the fashion and comedy industries, the only thing stopping it (probably) are the industry norms and culture.

But they aren't the direct results of particular industrial processes. You can approach the same flavor of wine through multiple routes, same with cheese, same with spirits, same with beer, same with even fashion. In fact, half the techniques in making most of these things is to cover up the problems of the other steps in the process. Beer that is bottle finished versus carbonated with a co2 tank, both taste the same but are different paths to the same goal. Same for cheese, is it aged in a cheese cave hundreds of years old, a climate controlled room, or in the bottom shelf of a fridge? What is it covered with? Same for wine, are they the natural bacterias and yeasts left on the grapes or is it inoculated? Is it aged in wood casks, or is it in stainless with wood chips? How is it aged? What is it aged in? California wines taste a lot like French wines but the Davis school, no matter how organic, is totally alien to French Biodynamic despite capable of tasting identical. Is the vodka simply distilled, how many times, what type of still? Is it potato or corn? When I brew up a batch of beer, I don't do what Lagunitas or Bell's does at a technical level, I don't have the equipment to do that, but I do produce the same flavors.

So, I do wonder if you can make a dress or skirt or pair of pants in more than one way. But I don't know, I'm not a tailor.
posted by TwelveTwo at 4:19 PM on August 10, 2010

Home sewing exception. This expands the fair use-style provisions already in this chapter of the Copyright Act -- and means that the fashion police can't raid crafters' closets looking for illegal downloads dresses.

Would this include Etsy?
posted by TwelveTwo at 4:25 PM on August 10, 2010

Trends always trickle down to the cheaper stores -- that's how they catch on with the populace. I really, really wanted a Herve Leger bandage dress, but they're thousands of dollars, so I found a very similar dress at Express for $85.

This was kind of my reaction. I can see why the fashion industry wants this, but it seems like limiting the spread of trends in an industry that exists because it creates trends every season is a strategy that could backfire. Without knockoffs, some people might buy from the actual designer; others will be alienated from fashion entirely because they can't afford to care about it.
posted by almostmanda at 4:26 PM on August 10, 2010

Something old (from the previous bills):
• Short, 3-year term of protection.


For now. The initial copyright term in the US was "only" 14 years (plus one extension).
posted by MikeKD at 4:30 PM on August 10, 2010

The more I think about it the more I dislike this. Women's fashion moves so fast because much of the goal is to wear what no one else is wearing, or at the least, wear what only alludes to what other people are wearing. The constant trickle down is what drives the constant changing. As soon as the fashion hits the cheap racks and can be emulated for a pretty penny less, then it ain't so pretty no more. Fashion is not a progression, the next style is not superior to the last. Men's fashion moves slower but is in just as much danger, if not greater danger, because it is driven by the goal of wearing what everyone else is wearing (but with a slight difference). Having fashion deemed a property will allow clothing styles to consolidate, just as wealth always does, and it will all be owned by a few hands. The premium for fitting in, or not fit in will rise and rise. It'll be impossible to afford that suit you need to wear for that interview on Tuesday, and just as impossible not to wear the same outfit at a wedding. Instead, the poor and frugal will have to opt for some other style of dress but that will be bought up as soon as the masses move over to zipper polo shirts and kilts. In the end, whatever fashion was left to public domain will become the uniform outfit for both men and women and we'll all recognize why sci-fi has long depicted everyone wearing uniform jumpsuits. Actually, that sounds pretty cool and a lot less of a hassle. I hope it'll have a pocket for my iPhone.
posted by TwelveTwo at 4:41 PM on August 10, 2010 [1 favorite]

At the very least there is one thing that will never happen again. Remember that touching moment we had for a period when the rich and the poor were both wearing ripped and weathered jeans? Or when the black, tan, and red haymark check was popular among Chavs?

Never. Again.
posted by TwelveTwo at 4:47 PM on August 10, 2010

Thanks for underlining that link in particular, filthy light thief (and thanks for this post, Weebot )
Seeing the case of the Diane von Furstenberg copy - side by side photo - of a lesser known designers work. I'm sure there are thousands of young designers out there who feel that their work has been ripped off by bigger names, but there isn't anything they can do about it today, is there?
posted by dabitch at 4:48 PM on August 10, 2010

Kathleen Fasanella posted quite a few good posts about fashion IP on her blog fashion-incubator.com including one few days ago on this new bill.
posted by vespabelle at 4:50 PM on August 10, 2010

I can't wait to slap my design label on a zip-up hoodie so every hipster douchebag has to pay me licensing rights (full disclosure: I own two). It's not like fashion designers are actually creating new forms of body coverings, "behold the DRESS!" All fashion is highly derivative with obvious precedents; no designer will ever be able to win a trial. This is a win win win for lawyers and no one else. Is that dress a Herve Leger (who apparently invented stripes) lookalike or a Boris-Karloff's-Mummy lookalike?

Average people will be unable to afford new trends. Upper class twits are going to lose their ability to sneer at knockoffs.
posted by Locobot at 5:07 PM on August 10, 2010

Ha, my utter lack of fashionableness means I'm safe. Safe, I tell you!
posted by emjaybee at 5:10 PM on August 10, 2010

The initial copyright term in the US was "only" 14 years (plus one extension).

Exactly. Once this has wormed its way into the law, extending the term will be relatively easy compared to the initial passage. This is the tricky part of getting the frog into the pot; what remains is just to slowly turn up the gas.

For any "emerging designers" to support this (if any actually do, as opposed to people posing as 'emerging designers' and astroturfing on behalf of industry incumbents) they're making a Mephistophelean bargain that their children and grandchildren and great-grandchildren will probably live to regret.

We've seen what "strong IP" does to software; the status quo is a disaster where basically anyone with a non-trivial product and without a 'defensive arsenal' runs the risk of being sued into oblivion. This is exactly how the incumbents like it — and it's exactly what the dominant players in the fashion industry will do there, too, except via subjective judgements on copyright instead of via patent.

Moreover — and I find it hard to think of an industry I care less about, on the whole, than fashion clothing — there's a significant danger that this will lead to even more industry-by-industry IP expansions. It's telling that this is getting shoehorned into the "vessel hull" copyright section, which was itself such an expansion (and a terrible idea for that). If the naval architects get their special exception, and then the fashion designers get theirs ... it seems pretty tough to not open it up to all the other industries currently working in restriction-free environments.
posted by Kadin2048 at 5:13 PM on August 10, 2010

NO ONE IS SAFE FROM FASHION.
posted by TwelveTwo at 5:14 PM on August 10, 2010

Here is my proposal. We all contract our respective senators and reps (us people anyway, other countries agitate in whatever way is appropriate). We accept this notion of copyright for your fashion designs, but to qualify you must pay all your workers the greater sum of $10 or 10 euros / hour.
posted by humanfont at 5:25 PM on August 10, 2010 [2 favorites]

Isn't there a seasonal 'look' (everyone, buy new clothing each season, 4 times a year!)? If the top-notch (or expensive) designers prevented everyone else from poorly cloning their work immediately, won't that mess with the entire racket for everyone?

Isn't the fashion game at least partly about conformity, and conforming to a new fashion continually? If a designer has even a temporary monopoly on a given fashion, how is everyone supposed to follow the trend-of-the-day?

(least likely) result to com from all of this: this IP grab inadvertently results in the death of the fashion industry as we know it.

[bonus points to the person that could construct IP laws to snap people out of the 'need' to wear makeup!]
posted by el io at 6:28 PM on August 10, 2010

Had this been the law years ago companies like Gap (and its lowend sibling Old Navy) would have been impossible to create.
posted by tommasz at 6:30 PM on August 10, 2010

I don't really have a dog in this fight- my purse is a recycled beach towel that I bought off etsy for $20- but I kind of hate this for a couple reasons. One, really? This is what our congress troubles itself with, really? And the other is that old canard, class warfare.
posted by Leta at 6:59 PM on August 10, 2010

The rentiers never sleep.
posted by wuwei at 7:06 PM on August 10, 2010

Blakely is interviewed in this informative podcast.

I'm not sure what the motive is here behind the push for more enforcement. Fashion filters both down and up; and even people who buy counterfeits are more likely to buy genuine articles. I wonder what the effect would be on the industry in the long run...
posted by stratastar at 9:11 PM on August 10, 2010

The book Against Intellectual Monopoly mentions the fashion industry as an example of how the absence of "intellectual property" benefits consumers. To make the most of their first-mover advantage, designers are forced to constantly innovate. Intense competition rapidly brings the price of copycat products down to a level where almost everyone can afford it.

While design is not all that there is in a coat or in a sofa, it is more and more the factor around which a competitive edge is built. Even the most casual of observers can scarcely be unaware of the enormous innovation that occurs in the clothing and accessories industry every three-six months, with a few top designers racing to set the standards that will be adopted by the wealthy first, and widely imitated by the mass producers of clothing for the not so wealthy shortly after. And "shortly after", here, means really shortly after. The now world-wide phenomenon of the Spanish clothing company Zara (and of its many imitators) shows that one can bring to the mass market the designs introduced for the very top clientele with a delay that varies between three and six months. Still, the original innovators keep innovating, and keep becoming richer.

The pace of innovation, the lack of artificial intellectual monopoly, and the speed and ease of innovation in the fashion design sector is well documented by Kal Raustiala and Chris Sprigman.

As soon as I read that, I thought "I bet those guys going to try to get a nice cosy intellectual monopoly so they can sit on high prices for ages instead".
posted by TheophileEscargot at 1:50 AM on August 11, 2010

This should apply well for our talks about music and film copyright. I think the most striking visual in Blakley's talk is the comparison between the grosses of industries with low IP protection versus high IP protection. Now, it's not an apples-to-apples comparison, obviously, but it does suggest that the contribution to economic and cultural activity that IP laws are suppose to promote are negligible, at best.

Surely the difference in the product matters, though? And in particular the economics of how they are consumed?

With fashion products (I think) the upper-tier designers and companies create one-off products or limited ranges that sell for at high prices to rich people. The rich people in question are presumably buying something because
a) it will increase in value
b) it's of a very high quality
or
c) pure aesthetic pleasure, i.e. they just want the option of wearing something they think is nice.

That pays back the people who produce the original. The design can then be copied and sold on to poorer people, who make up a very different market.

What would the equivalent be for films? If you make a film, you generally aim to sell it to as many people as possible, because that's the way to make the most money off it. I have a hard time seeing how you could market a film that you only sold to a small number of people for a very large amount of money.

I suppose with books, you could sell a limited number in very fancy, "folio" editions?

Am I missing something?

I found the comparison between industries provocative, but it did lead me to wonder how applicable the way things work in fashion might be to other areas.
posted by lucien_reeve at 5:53 AM on August 11, 2010

lucien_reeve: Well, when I said not apples-to-apples, I was thinking that you could account for a lot of the discrepancy by the utilitarian nature of the product. Clothes are a precondition for functioning in polite society. Unless you like breaking obscenity laws. Films less so.
posted by Weebot at 7:51 AM on August 11, 2010

All in all I think this is pretty awesome. My SO could give a rat's ass about the absurdities of copyright protection as realized in today's society. She would probably give a whole mischief of rat ass if the same absurdities obtain in the fashion industry. Anything to spread the misery wide enough to lead to an uprising for a return to reasonable implementations of copyright says I.
posted by Fezboy! at 8:59 AM on August 11, 2010

The Johanna Blakely talk should be required reading on this issue. I just read through the thread on collection of performance rights fees last night and the thought of a escalation of IP laws in the fashion industry frankly terrifies me in light of the discussion.
posted by VulcanMike at 10:07 PM on August 11, 2010