Once again, the Senate is considering a bill that would allow fashion designers to sue people for knocking off their designs. The “Innovative Design Protection Act,” S.3523, is being considered by the Senate Judiciary Committee. The bill, like its predecessors, would create a three-year term of protection for clothing, handbags, eyeglass frames, and other types of apparel, preventing anyone else from using the same design as the original designer. For a look at some of the arguments around earlier versions, see Katy’s post here.
This would be a marked departure from the state of the law now. Currently, apparel designers can apply for design patents to gain limited monopolies on many of their products, and trademark law prevents knockoff manufacturers from pretending to sell originals. But the proposed law would create an entirely new right for clothing designs—something that hasn’t existed in U.S. law.
And the fashion industry has been doing great without it. The luxury sector, including the high-end fashion groups pressing for the bill, has enjoyed a substantial boom in recent years. Meanwhile, retailers of less expensive fast-fashion “knockoffs” play a significant role in pushing the state of the art in fashion forward as well as letting those with mere mortal budgets buy fashionable clothing.
Not only can banning fashion knockoffs harm fast-fashion makers and retailers, it can easily have repercussions throughout the fashion world. Designers of all stripes are inspired by, and copy, one another, consciously or unconsciously, and overlaying a new IP right on top of this environment only increases the risk and cost of litigation for everyone.
And that risk of litigation can most easily be felt by the smallest firms, who are less likely to have legal departments or brand enforcement divisions to push back when they’re sued and accused of copying.
It’s certainly true that designers have had their designers ripped off by others, and no one wants to see someone claiming credit for creativity where it isn’t due. But that doesn’t mean that we need a whole new set of laws to prevent distasteful or unethical activity—especially when those laws threaten to create new problems of their own. Take our attitudes towards free speech, for example. There’s tons of blameworthy speech out there every day. People are constantly saying things that are shameful, racist, untrue, profane, etc. Yet we allow it. Not because we treasure those particular instances of speech, but because we know that trying to use the law to ban it puts all speech at risk, including that speech, often controversial, that moves our national conversation forward.
Fashion is one of those areas that actually benefits from a lack of automatic IP protection. Yet the proposed bill would add it to the growing list of odd niches outside of copyright, trademark, and patent that we’ve created new rights for, including semiconductor masks, and boat hulls. But there’s seemingly no end to the industries that require creativity but get no specialized protection. What’s next? Recipes? Hairstyles? Football plays? The implication seems to be that inspiration requires permission—a philosophy that seems more suffocating than anything else.