[Upd-discuss] Fashion designers seek copyright protection

[robert weissman]

1. BusinessWeek: Put a Patent on That Pleat
2. Financial Times: Flattery will get you everywhere
3. Design Piracy Prohibition Act text

http://www.businessweek.com/magazine/content/08_13/b4077065407184.htm?chan=magazine+channel_what%27s+next

BusinessWeek
March 31, 2008

Put a Patent on That Pleat
To thwart pirates, fashion designers are getting copyright and other 
legal protection for their clothes—then suing

by Reena Jana


When shoe designer Stuart Weitzman saw a pair of $45.99 buckled flats on 
jcpenney.com (JCP) that looked remarkably similar to one of his own $215 
creations, he did what more and more designers are doing: He sued.

In January, Weitzman, whose elegant footwear is worn by the likes of 
Angelina Jolie and Ivanka Trump, filed a complaint alleging patent 
infringement in New York federal district court. That's right, the 
designer had registered a patent for the shoe's buckle and 
ornamentation. Weitzman offered to settle if Penney would destroy the 
shoes or sell those it had and give him half of the money. "We're making 
an original fashion product, a timely product," says Weitzman. "It 
doesn't rot that quickly, but if it's knocked off, customers stop buying 
ours." (Penney officials declined to comment on the case, which, as of 
Mar. 19, had not been settled.) Last year, Weitzman sued Sears (SHLD) 
over another design, and the retailer agreed to remove the shoes from 
its Kmart stores.

Weitzman and other top designers such as Diane von Furstenberg have 
watched the knockoff industry bring couture trends to the masses faster 
than ever. Los Angeles-based Forever 21, a so-called fast-fashion chain 
with more than 400 stores in North America, Asia, and the Middle East, 
has built its whole business around copying designs. And ABS, a 
mass-market label, is known for quickie interpretations of the gowns 
worn by celebrities at the Academy Awards ceremony each year; they're 
sold at department stores such as Lord & Taylor and Dillard's. Some 
upscale chains such as Nordstrom and Bloomingdale's carry the real 
labels as well as the cheaper versions.

These days, as even well-to-do shoppers are showing some restraint when 
it comes to luxury purchases, designers are worried that they'll end up 
as fashion victims. So they are pushing Congress to help protect their 
work, trying to outsmart the pirates by making their clothes harder to 
copy, and, when they can, suing. "We're at the breaking point," says 
Steven Kolb, executive director of the Council of Fashion Designers of 
America (CFDA), which is leading the lobbying effort. "We're not going 
to take it anymore."

TARGETING TARGET
Designers have been trying to win broad legal protection for years. 
Although books, movies, architecture, and even software code are 
protected under copyright law as original art, clothing designs are not. 
So while a dress may look exactly like a Marc Jacobs original, retailers 
can slap a different label on it and sell it with legal impunity. 
(Counterfeit garments, by contrast, pretend to be the real thing—right 
down to the label—and are illegal.)

The only way designers can take on the pirates in court is to file for 
patents, or get copyright protection for aspects of their work that 
legally can be considered art. Von Furstenberg, whose wrap dresses have 
been knocked off by various big retailers, is among those who have begun 
copyrighting fabric patterns. In January she sued Target (TGT) for 
allegedly copying her "spotted frog" print. Target, known for its 
cheap-chic designs, stopped selling the dresses. Company spokesman 
Joshua Thomas says: "It always has been and continues to be the policy 
of Target to respect the intellectual-property rights of others. We are 
working with our vendor on this issue and hope it can be resolved."

This piece-by-piece approach has its limits, though. That's why 
designers have been showing up in Washington to back a proposed Design 
Piracy Prohibition Act. The bill offers legal protection for as long as 
three years and covers the entire design, not just aspects of clothing 
such as fabric patterns. It would impose fines of up to $250,000 or $5 
per copy, whichever is higher, on those deemed to have stolen an 
original design. Von Furstenberg, who is president of the CFDA, says the 
bill "will encourage more manufacturers to hire designers, increasing 
the availability of affordable fashion at every price point." But in 
mid-March, the American Apparel & Footwear Assn., which represents 
stores and garment makers, came out against the proposal, and now it is 
stalled on Capitol Hill. Kevin M. Burke, the head of the group, says a 
piracy law would cause "a litigation nightmare."

Meanwhile, some labels are trying to outmaneuver the pirates. Copycat 
designs often show up in stores within weeks of a fashion show, while 
the authentic clothes don't arrive for months. Halston, which is owned 
by movie mogul Harvey Weinstein, is one of those pushing to make its 
catwalk fashions available right away, on the online retail site 
Net-a-Porter.com, in hopes that shoppers will choose immediate 
gratification over price savings.

Weitzman and others are making some of their couture designs a little 
more haute so pirates can't rip them off at all. For his spring 
collection, Weitzman created unusually shaped heels for a $299 shoe 
called the Bowden-Wedge. He is also experimenting with materials such as 
titanium and steel, which he says are too expensive for the knockoff 
artists. If they try something cheaper, like painted wood, the heels 
will snap. "I used to make whimsical and outrageous shoes for display 
only," Weitzman says. "For the first time, they're becoming part of 
sellable footwear."

-------
http://search.ft.com/ftArticle?queryText=studded&page=10&id=071117000349&ct=0

WEEKEND FT: Flattery will get you everywhere
By Vanessa Friedman, Financial Times
Published: Nov 17, 2007

Recently I was having a water-cooler conversation with my colleague, the 
Arts Guru. We weren't gossiping about our new Star-Trek -like newsroom, 
which comes complete with red "hot" seats for news editors, but about an 
article AG had just written on a man called John Myatt. Myatt is a 
master forger - he makes Monets, Picassos and Modiglianis - whose works 
have become eminently collectable. I wanted to know what AG thought of 
this development. He pulled a face, then said: "The people who buy them 
can't possibly think visitors will think they have real Monets in their 
house . . . can they?"

We looked at each other. Can they? It depends. If I had a Monet on my 
wall, no, but if Bill Gates had one . . . Put another way: I know plenty 
of wealthy women who carry fake Hermès bags or wear fake diamond 
jewellery, but because they could buy the real stuff if they wanted to, 
their friends assume it's genuine. And though, if asked straight out, 
they wouldn't deny the provenance of their goods, they don't exactly 
advertise it either.

But I also know women who do advertise it, because 1) they want people 
to know they would never spend that much money on something as frivolous 
as fashion; and 2) the postmodernism of it all appeals to them.

It's not that different from people who own Andy Warhol or Marilyn 
Monroe prints that came not from the Factory but from a renegade group 
who took the silk screens to Europe and produced multiple copies stamped 
"Sunday B. Morning", with another space for "Fill in Your Own 
Signature". If Richard Prince, who is having a retrospective at the 
Guggenheim museum in New York, can "rephotograph" a photograph and 
present it as original work, if Gus Van Sant can do a frame-by-frame 
remake of Alfred Hitchcock's Psycho , why not "reproduce" a handbag and 
present it as an homage?

The fashion world is tying itself in ever-more elaborate knots over the 
issue of copying. This is not the same as counterfeiting, which is the 
overt creation of a fake product that purports to be the real thing, and 
involves patent and trademark infringement and is actionable - think 
fake Chanel bags and Cartier watches and police raids on warehouses in 
New York and China - but rather similar-but-slightly-different, usually 
cheaper, pieces. The kind of thing you see in Marie Claire magazine's 
Spree v Steal feature. The kind of thing H&M has made a virtue of by 
"collaborating" with designers on limited-edition lines that look very 
much like the designer's main lines but cost a fraction of the price.

Put another way, if Roberto Cavalli doesn't have a problem being 
"inspired" by the leopard-print dresses in his main line to create a 
similar, much less expensive leopard-print dress for H&M, why should 
consumers think it is wrong for other lines to do the same thing? Is 
Lucien Pellat-Finet's skull-studded version of a Chanel knit jacket 
brilliantly tongue-in-chic or a knock-off? (Personally, I think the 
first.) Can anyone actually claim to have invented the baby-doll dress?

There is a bill making its way through the US Congress known as - 
surprise! - the Design Piracy Prohibition Act, which would amend the 
Copyright Act of 1976 by extending copyright protection to fashion 
designs for a period of three years (at which point, presumably, they 
would either be so over everyone would have forgotten them, or so over 
they would have come back in, at which point they could be re-copyrighted).

The Council of Fashion Designers of America is all for it. But as Kal 
Raustilia of UCLA and Christopher Sprigman of the University of Virginia 
point out, in an article in the Virginia Law Review: "Where IP Isn't" 
(IP being intellectual property), high street copying helps force 
designers to reinvent themselves, which speeds up the fashion cycle, 
which increases their sales, leading to greater creativity and 
productiveness. In other words, copying is good.

Didier Grumbach, the president of the Chambre Syndicale de la Haute 
Couture in Paris, disagrees, and blames the current spate of sartorial 
imitations on the internet and the speed at which fashion show pictures 
zip their way around the world. His solution is to ban e-photographs 
until the clothes are ready to go into stores, as opposed to posting 
them the season before, which might sound like good news for fashion 
houses - except no designer will countenance such a ban because of the 
amount of free advertising sites such as Style.com provide. As Calvin 
Klein pointed out a long time ago, to be widely copied simply means you 
are widely successful. It's when you stop being copied that you should 
worry. You know the cliché: imitation is the highest form of flattery.

It all comes down to what originality means. Maybe fashion people should 
take a page from Myatt, who labels his works JMGF, or John Myatt Genuine 
Fakes - which is a amusingly original way of approaching an unoriginal 
act. After all, haute brands are continually citing their influences, as 
Robert Duffy, Marc Jacobs' business partner, pointed out recently in 
response to charges that Jacobs' work was derivative of Comme des 
Garçons and Martin Margiela. Why shoudn't the high street directly admit 
its debt to high fashion? Everyone would benefit: the copied by the 
acknowledgement of superiority, and the copyist by adding a knowing wink 
to a label and thus transforming, say, the sleeveless belted silver 
sequinned black wool dress from Principles that is 
very-similar-but-not-the-same as the sleeveless belted silver sequinned 
velvet dress from Alberta Ferretti into a party-perfect romp through our 
comment-on-the-comment culture.

It's the natural conclusion of what fashion teaches: the whole point of 
clothing is to advertise a certain value system in a commercial and 
accessible way. Once you do, the object becomes covetable and - just 
possibly - collectable.


-------


110th CONGRESS
1st Session
H. R. 2033

To amend title 17, United States Code, to provide protection for fashion 
design .

IN THE HOUSE OF REPRESENTATIVES

April 25, 2007

Mr. DELAHUNT (for himself, Mr. GOODLATTE, Mrs. MALONEY of New York, and 
Mrs. BONO) introduced the following bill; which was referred to the 
Committee on the Judiciary

A BILL

To amend title 17, United States Code, to provide protection for fashion 
design .

Be it enacted by the Senate and House of Representatives of the United 
States of America in Congress assembled,
SECTION 1. SHORT TITLE.

This Act may be cited as the `Design Piracy Prohibition Act' .
SEC. 2. PROTECTION FOR FASHION DESIGN .

(a) Designs Protected- Section 1301 of title 17, United States Code, is 
amended--
(1) in subsection (a), by adding at the end the following:
`(3) FASHION DESIGN - A fashion design is subject to protection under 
this chapter.'; and
(2) in subsection (b)--
(A) in paragraph (2), by inserting `or an article of apparel,' after 
`plug or mold,'; and
(B) by adding at the end the following new paragraphs:
`(7) A `fashion design' is the appearance as a whole of an article of 
apparel, including its ornamentation.
`(8) The term `design' includes fashion design , except to the extent 
expressly limited to the design of a vessel.
`(9) The term `apparel' means--
`(A) an article of men's, women's, or children's clothing, including 
undergarments, outerwear, gloves, footwear, and headgear;
`(B) handbags, purses, and tote bags;
`(C) belts; and
`(D) eyeglass frames.'.
(b) Designs Not Subject to Protection- Section 1302 of title 17, United 
States Code, is amended in paragraph (5)--
(1) by striking `(5)' and inserting `(5)(A) in the case of a design of a 
vessel hull,';
(2) by striking the period and inserting `; or'; and
(3) by adding at the end the following:
`(B) in the case of a fashion design , embodied in a useful article that 
was made public by the designer or owner in the United States or a 
foreign country more than 3 months before the date of the application 
for registration under this chapter.'.
(c) Term of Protection- Section 1305(a) of title 17, United States Code, 
is amended to read as follows:
`(a) In General- Subject to subsection (b), the protection provided 
under this chapter--
`(1) for a design of a vessel hull shall continue for a term of 10 years 
beginning on the date of the commencement of protection under section 
1304; and
`(2) for a fashion design shall continue for a term of 3 years beginning 
on the date of the commencement of protection under section 1304.'.
(d) Infringement- Section 1309 of title 17, United States Code, is amended--
(1) in subsection (c), by striking `that a design was protected' and 
inserting `or reasonable grounds to know that protection for the design 
is claimed';
(2) in subsection (e), by inserting `or from an image thereof,' after 
`copied from a design protected under this chapter,'; and
(3) by adding at the end the following new subsection:
`(h) Secondary Liability- The doctrines of secondary infringement and 
secondary liability that are applied in actions under chapter 5 of this 
title apply to the same extent to actions under this chapter. Any person 
who is liable under either such doctrine under this chapter is subject 
to all the remedies provided under this chapter, including those 
attributable to any underlying or resulting infringement.'.
(e) Application for Registration- Section 1310 of title 17, United 
States Code, is amended--
(1) in subsection (a), by striking the text and inserting the following:
`(1) VESSEL HULL DESIGN - In the case of a design of a vessel hull, 
protection under this chapter shall be lost if application for 
registration of the design is not made within 2 years after the date on 
which the design is first made public.
`(2) FASHION DESIGN - In the case of a fashion design , protection under 
this chapter shall be lost if application for registration of the design 
is not made within 3 months after the date on which the design is first 
made public.'; and
(2) in subsection (b), by striking `for sale' and inserting `for 
individual or public sale'.
(f) Examination of Application and Issue or Refusal of Registration- 
Section 1313(a) of title 17, United States Code, is amended by striking 
`subject to protection under this chapter' and inserting `within the 
subject matter protected under this chapter'.
(g) Recovery for Infringement- Section 1323(a) of title 17, United 
States Code, is amended by striking `$50,000 or $1 per copy' and 
inserting `$250,000 or $5 per copy'.
(h) Other Rights Not Affected- Section 1330 of title 17, United States 
Code, is amended--
(1) in paragraph (1), by striking `or' after the semicolon;
(2) in paragraph (2), by striking the period and inserting `; or'; and
(3) by adding at the end the following:
`(3) any rights that may exist under provisions of this title other than 
this chapter.'.