As Alex mentioned, the House Subcommittee on Courts, the Internet and Intellectual Property held a hearing on the need to protect fashion designs and designs of external automobile parts this past Thursday. A bill to protect fashion designs, H.R. 2033, has already been introduced in the House. We’ve written about it here, here and here, but this bill would prevent designers from making garments and accessories that look the same or substantially similar to protected designs.
A quick recap of the current law: Copyright law does not prevent copying of fashion “designs”. Copyright may protect elements of a garment like the patterns or prints in their textiles or other materials, but garments and accessories themselves are usually considered functional and thus unprotected. Trademark law also is used to prevent counterfeit labels on garments. For instance, a small boutique could not sell a garment under the label of a famous maker such as Chanel without permission. However, trademark law would not prevent the boutique from copying Chanel’s designs. Similarly, patent law does not protect fashion designs because design patent protection is available for truly original designs and most fashion designs are not completely new.
H.R. 2033 would sidestep these limitations by instituting a design protection regime for fashion designs outside the purview of patent, trademark and copyright laws. The bill would give special protection to fashion designs for 3 years if the design were registered with the copyright office within 3 months of being made public. Anybody who copies the design or makes a design that is “substantially similar” to the protected design would be deemed an infringer.
As Chris Sprigman notes, the fashion industry has operated and thrived in a low intellectual property protection environment for a long time. This argument was repeated by Mr. Steve Maiman of Stony Apparel, Los Angeles when he testified at yesterday’s hearing. Mr. Maiman told Congress that nothing had changed in the fashion industry to warrant a new protection regime. Fashion design protection would be unfair because almost no design is original. Every design borrowed from those that went before. A bill protecting fashion designs would only increase litigation based on allegations of copying and stifle creativity in the industry.
Responding to questions from the Committee members Mr. Maiman observed that inspiration that comes top-down would be stifled by design protection and would deprive ordinary Americans of the latest designs. He also explained the copying does not adversely affect the industry because runway designers and those who directly copy their designs operate in completely different markets–those customers who can afford the runway design will buy because they want to be able to say, “It’s an original,” and those who couldn’t afford the price of runway design will settle for an approximation when the trend trickles down. Original “high-fashion” designers do not have to lower their prices and compete with knock-offs–when was the last time you saw Kate Spade discount the price of handbags because similarly designed bags were selling off the racks in Chinatown? Regardless, Mr. Narciso Rodriguez, who testified on behalf of the Council of Fashion Designers of America (CFDA) said that designers need protection because they invest huge amounts of money in designing and bringing their collection to the runway. Yet, nothing he said refuted the arguments that runway designs and their copies do not compete in the same market.
In one part of his testimony Mr. Rodriguez narrated the sad story of 8 million copies of a dress he made for Carolyn Bessette Kennedy being sold by “pirates” while he sold only 40. The original dress cost $40,000. What are the chances that all 8 million copies also cost $40,000 or anywhere near that amount?
The second part of the hearing related to design protection for automobile parts (windshields, doors, bumpers etc). As some members of the Subcommittee observed, there seemed to be no relation between protection for fashion designs and design of automobile parts.
Current law already protects the design of automobile parts through design patents. In fact, Mr. Carl L. Olsen who testified on behalf of the Alliance of Automobile Manufacturers noted that auto manufacturers already seek protection under design patent laws. Mr. Jack Gillis testifying on behalf of the Consumer Federation of America observed that auto manufacturers are using this protection to destroy competition in the repair parts market. A recent ITC decision that placed a ban on certain imports of replacement parts gave a boost to manufacturers who seek such protection. While protection for parts is necessary in order to prevent competitors from copying designs, preventing repair parts manufacturers from doing so would threaten vital consumer benefits.
Mr. Gillis testified that competition in the repair parts market keeps prices and insurance premiums down. Design protection would erode these benefits. Lower income American would not be able to afford car repair and more cars would be totaled. He urged Congress to amend design patent law to carve out an exception for manufacturers of repair parts. Some members of the Subcommittee raised questions about how best to safeguard consumer interests while preventing copying. Congressman Howard Coble asked if the provision did more harm than good.
As I observed before, the logic of combining fashion design protection with protection for design of automobile parts escaped me, and we have yet to see any draft language that would amend HR 2033 to add auto parts protection. If the two subjects are combined, opposition to auto parts protection is likely to bring down the whole bill, including provisions concerning fashion design protection.
Regarding fashion protection, designers, regardless of whether they sell high-end runway dresses or off-the-racks of the local department store should all be on the same competitive playing field–and allowed to receive inspiration whether it comes “top-down,” or as even Mr. Rodriguez acknowledged, “bottom-up.” If HR 2033 were to pass, high-end designers may not be the only ones who rush to register their works, but they will likely be the only ones who rush to litigate and enforce “their” design protection against fellow designers in different markets.