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FASHION POLICE: Will Knock-Offs Get Booted?

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CHANGES ARE AFOOT IN U.S. FASHION LAW. WHAT IS THE FUTURE FOR FASHION HOUSES, LARGE & SMALL
By She's a Betty, for Fashiontribes.com

The curve of a heel or the plunge of a neckline can make (or cost) millions. Fashion design is a serious business, and yet, current U.S. law does not offer copyright protection for fashion designs – despite the fact that being knocked off can result in cancelled wholesale orders, lost revenue, and sometimes even force smaller companies out of business.

Long-held U.S. copyright doctrine dictates that when the design of a useful object (like clothing) cannot be separated from the object itself, it cannot be copyrighted. The knock-offs typically in the news have to do with trademark infringement rather than copyright violations, because placing designer logos or names on non-designer goods is not permitted under trademark law. The cheap design knock-offs found at popular retailers like H&M, Zara, & A.B.S. are all perfectly legal.

However, in the case of computer chips, architectural works, and most recently, boat hulls, copyright exceptions have been made, and now, fashion designers also want an exception made for their contributions. On March 30, 2006, a bill was introduced in the U.S. House of Representatives which would allow fashion designers to copyright their designs for a period of three years. Under the Design Piracy Prohibition Act, H.R. 5055, infringers would be fined $250,000, or $5 per copy, whichever is higher. French and Italian designers are pushing for similar legal protections for their designs in the U.S., following a set of regulations introduced by the European Union in 2002 that made it easier to copyright fashion designs.


COPYRIGHT LAW FAQ

Would Copyright Protection Really Protect the Industry?
Although fashion developed into a $350 billion dollar industry in the U.S. without copyright protection, proponents of H.R. 5055 argue that digital cameras, high-speed internet connections, and other technological innovations have made it possible for designer knock-offs to hit retail stores months before the designer has even shipped. Affording designers copyright protection would ensure that creators receive compensation for their efforts, which, in turn, would nurture innovation. (Those in favor of the status quo point out that cheap copies make a trend more quickly & widely available at different pricepoints, speeding up the fashion cycle, and reducing the time it takes for a trend to become obsolete - which benefits fashion.)

How Do You Define Infringement?
In 1994, Yves Saint Laurent (YSL) successfully sued Polo Ralph Lauren under French law for $350,000 in damages for copying a $15,000 tuxedo dress. Yet, several years earlier, the courts ordered YSL to pay $11,000 in damages to another French couturier for using its designs. Copyright laws prohibit any article substantially similar to the copyrighted article, but distinguishing a deliberate copy from an unintentional is more difficult than it might seem. The fashion industry thrives on a healthy exchange of ideas, where designers regularly “reference” each other & designs already in the public domain (meaning they’re not copyrightable), and draw inspiration from the same well. When asked where fashion design comes from, many designers suggest that it is in the air. If H.R. 5055 passes, however, the biggest (and most expensive) legal question will be: whose air?

Will Designers Enforce Their Copyright?
In 2002, the European Union made it significantly easier for designers in member nations to copyright their designs - affording registered designs 25 years of protection, in contrast with only three years for unregistered designs. Opponents of H.R. 5055 point to Europe’s thriving high-street brands (like Zara, Mango, and H&M) as evidence that even when it is available, copyright protection is not enforced. However, the regulations have prompted several high profile suits. Jimmy Choo recently settled a suit with British high-street chain New Look over their “Bonbon” shoe, and has begun proceedings against Marks & Spencer for copying Choo’s “Cosmo” bag. Denim label G-Star also recently won a case against Polo by Ralph Lauren. And yet, the legal fees alone could bankrupt all but the deepest-pocketed plaintiff. Many knock-off artists keep their assets outside the U.S., well out of the reach of victorious plaintiffs who may never receive even enough money to offset their legal fees. The bottom line is that for the law to be truly effective, designers must not only register their designs, but show they are willing to enforce their copyright.


WHAT IF H.R. 5055 WERE TO PASS?

- High-street businesses would probably license certain design features from fashion designers. They would also need to emphasize original designs, collaborating with more known fashion designers for limited collections, like Target’s successful Go International series, or H&M’s limited edition designer collections.

- Line-for-line copy artists like A.B.S. and CocoMyles would have to change business models or shut down. The $300 million red carpet knock-off industry would suffer a heavy blow.

- With fewer cheap knock-offs of designer originals on the market, fashionistas would either have to save their money and purchase the real deal, or forgo the look altogether. This would have the effect of lengthening the life of whatever trends are popular, and slowing the pace of the fashion cycle.

- The difference between expensive and cheap fashion could become more pronounced.

- With less knock offs available, crafty fashionistas would probably turn to DIY. Personal sewing, already experiencing a new vogue, could become even more popular.

- The only sure thing? Because the success of the regulation depends on willingness of designers to enforce their copyright – it’s the lawyers who would make a fortune. However, given that many bills never even make it out of committee, and H.R. 5055 is not only controversial, but not a top priority – the bill is unlikely to pass.

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