Fashion Copyright Bill

[sam_tem]

i know there's been many conversations about this exact thing on here before, but saw this post on theatlantic about it and figured some people might like to discuss it:

http://www.theatlanticwire.com/opinions/view/opinion/Will-the-Fashion-Copyright-Bill-Stifle-Innovation-4660

[endersgame]

i'm not very familiar with fashion copyright. i know it's mostly trademark protection, but why was it decided that fashion design was not part of the general intellectual property protection of artist's life + 70 years?

[Faust]

there is a utility clause in the copyright law. anything that has utilitarian value, as clothes do, is not protected.

[move_ment]

This was posted in the TED thread, seems fitting:
Johanna Blakley: Lessons from fashion's free culture

[Faust]

/\ Yes, this sums up my view well. Exactly what I teach at Parsons. I know that many designers will disagree, but that's what I think...

[kdk]

Designers could presumably circumvent the utilitarian exception by claiming copyright on a smaller detail on their piece (for example, a random detail that serve no purpose.) Of course, this won't protect the piece as a whole, but sometimes, it is that very random detail that makes the designer piece the "it" item so...

Re: the proposed legislation... The "substantially similar" standard is an mish-mash of a standard when applied to something like music, so I don't see how this helps to clarify the extent of protection for designer's work other than the 3 year time limit.

If anything, this proposed legislation seems more like a weapon for the big guys to bring cease and desist/infringement suits against the little guys to shut them down if they have no financial resources to fight it in court.

[Test]

The standard is proposed is worthless, particularly because the common juror would be the one determining it. Example of a supportive Congressman being corrected by his own side:

“Representative Lamar Smith presented the witness panel a photograph of a Diane von Furstenberg dress and a photograph of what he considered to be an infringing knockoff design. Jeffrey Banks, a fashion designer, responded that in fact the two dresses were not the same at all, in part because the fabric was different and also because the original was a wrap dress with cap sleeves, whereas the alleged 'knockoff' was a slip-dress silhouette."

Designers could presumably circumvent the utilitarian exception by claiming copyright on a smaller detail on their piece (for example, a random detail that serve no purpose.) Of course, this won't protect the piece as a whole, but sometimes, it is that very random detail that makes the designer piece the "it" item so...

They can. Most explanations of of current protections available make the example of being able to copyright a screenprint or applique but not the clothes itself. Technically, designers could get patent protections it's just infeasible (takes too long, protections unsure, takes thousands of dollars).

[Faust]

If anything, this proposed legislation seems more like a weapon for the big guys to bring cease and desist/infringement suits against the little guys to shut them down if they have no financial resources to fight it in court.

agreed

[Shucks]

this is actually very much in my area of expertise. i know the first proposed bill from a few years ago and the changes included in the new proposal. i've also read some of the testimonies before the house of rep.

what i can say is that the current proposal is VERY similar to an existing 'pan-european' 3 year protection available in the EU (only not called 'copyright' but 'unregistered design protection'), which was lobbied for by the european (i.e. french / italian) fashion industry and the european toy industry. in fact, i think these same european industry organizations (commité colbert, altagamma...) have been part of the push for this bill in the US as well, together with CFDA and AAFA.

thing is, this type of protection really hasn't had much of a practial effect at ALL, least of all in the courts. it turns out the fashion system moves too quickly to bother with infringement lawsuits related to copying of most products, and fashion companies use other non-legal strategies for protecting the revenue streams. distribution channel strategy and brand-building to name some... also, those companies that work with more 'classic' and long-lived luxury goods (hermès etc..) tend to use trademark and EU's 'registered design protection' instead.

so honestly i don't think passing/not passing this bill will change very much for anybody - but it seems fair that clothing designers should in principle have access to the same level of protection of their work as do other creative persons. the current US copyright exception for clothing really makes NO sense, especially since the proposed protection would only be limited in duration (3 years).

but yes, i do agree that what little usefulness it would have in practice, would be as a scare tactic for large retailers and a few big fashion companies. (even if this new copyright protection in theory would allow smaller designers to create and capitalize on their original designs through licensing to larger players.)

sorry for rambling on...

PS. it is wrong to broadly say - as some critics of the proposal do - that NO protection is conducive to creativity. instead, a MODERATE and continuously reviewed level of intellectual property legislation has generally proven to benefit innovation throughout history (open source innovation notwithstanding...). the creator of an innovation must have a decent shot at getting a return on his investment, or he/she will have less incentive to innovate.

[Faust]

/\ True, but I think that is where the logo/trademark copyright comes in. I think this is protection enough. There is also public shaming, reputation, etc. This industry is not that big - people will know who the true talent is and who is the knock-off artist.

Thanks, Chuck for wasting taxpayers money.

[Shucks]

there is one aspect of this though that may be worth mentioning - a short 3-year protection would (in THEORY) allow a designer to test a market without having to apply for stronger protection such as a registred trademark or design patent (in US).

for instance: a groundbreaking design could turn out to be such a success that it would be worth carrying over into several seasons to follow, perhaps to even make a perennial core item in the brand's offer.

the current legislation allows copycats to undermine such longevity of products and decreases the incentive of designers to even try to achieve it. i think there are societal/ethical considerations to be made also when discussing intellectual property issues: what kind of consumption patterns are we creating through the chosen legislation?

with rampant copying that goes on today we get 'fast fashion' and even high-end (but still generic) products sold with a brand which is built through marketing communications rather than through design of the product.

i can't help but think that SZ to me represents to a certain degree a vision of an alternative to this (i.e. to the seasonal fashion cycle) and perhaps we would be better served as 'consumers' if products had a higher originality and longer life in their markets, and i think intellectual property laws - or the lack of them - affect this.

but SHUCKS won't waste taxpayers' TIME on this topic anymore....

Thanks, Chuck for wasting taxpayers money.

[Faust]

/\ Hehe. Schucks Schumer.

[gamex1]

I don't think there is anything else to talk about it...shatter this topic for ever

[Lane]

This is an incredibly interesting subject to me because I've always been clamoring for the removal of IP laws for pretty much every form of media. Industry becomes so stagnant with these laws, and they hinder creativity in the various industries. I've actually just now found out that fashion is free from those laws, and I'm very glad that they are. Since it definitely makes sense why the industry is so expressive and has no bounds.

With music you see such a stagnant industry which control is squandered by a couple of record labels, which produce the same garbage music every year with slight changes here and there. You don't see any large leaps of creativity in music or movies. Both industries being one of the main sufferers of this stagnancy.

If you play computer video games you immediately notice how beautiful creativity is when it has no bounds. Although IP laws protect video games you see how modifications made by people who appreciate the games have transformed the product, and sometimes made a whole new revolutionary product. This can be seen with the game Warcraft 3. Where DOTA was created, which was inspired by the warcraft 3 engine and universe. This eventually lead to other similar popular games out today such as Heroes of Newerth and Leagues of Legend. Even if you aren't familar with video games you can appreciate the innovation from indie enthusiasts who enjoy creating new things for their favorite games to keep them fresh.

Overall, this can translate into something better for the industry as a whole. Since companies could use more of each game to make even better ones, and not have the industry be as slow as it is. Even though these laws exist you still see subtle copying from developers here and there, which overall improves their product and satifies the consumer without injuring the original party who had the idea. A good example of this is the new call of duty game coming out with a mode called, gungame. This mode was inspired by fans of counterstrike who developed this mode on their own, and it became very popular as modification.

[Faust]

WASHINGTON — Fashion designers and apparel brands seeking protection from Congress for their designs moved a step closer on Wednesday after the Senate Judiciary Committee unanimously passed a bill that would provide three years of copyright protection for “unique and original designs.”

The bill, known as the “Innovative Design Protection and Piracy Prevention Act,” will expand copyright right laws for the first time to include fashion designs that are often the target of knock-off artists who replicate and profit off of another designer’s creation.