IDPPPA: Yet another fashion design copyright law

Posted by Kathleen Fasanella on Aug 6, 2010 at 7:09 am / Design, Intellectual Property / Trackback

Senator Schumer has introduced a new fashion design protection bill called the Innovative Design Protection and Piracy Prevention Act. The bill represents a compromise as compared to its highly problematic predecessor, the Design Piracy Protection Act (DPPA) which would have put 90% of independent designers out of business (and me along with them). The proposed new bill represents a compromise between the AAFA and CFDA. We also have your voices and advocacy to thank for making this possible.

I’ll summarize the changes within the contexts that concerned us most and provide a link to an official press release once it becomes available (the only corroboration I’ve found this morning is a post on Cathy Horyn’s blog). Pending official confirmation, here are the biggies:

1. Design registration will not be required to protect your stuff. Under the earlier proposal, registration would have been required -if not by law- then for all practical purposes to avoid indemnity. Redux: your contractors and pattern makers are not going to refuse to work with you if you haven’t registered your designs. Previously they would have because they could have been sued by someone who sued you however baseless or unjustified their case. Previously everyone would have been required to incur incredible legal costs just to sell anything. Now you only register if you want to.

2. Public domain: nothing in the public domain (current trends, vintage-homage etc) are cause for actionable civil suits. The previous bill (DPPA) was so goosey that any firm large enough to have a legal department could have registered the rights to something as common as a hoodie, amounting to nothing short of a monopoly. No one else could have made one lest they be subject to civil and criminal action. Being forced to buy from a single manufacturer, consumer prices would have skyrocketed.

3. Term of protection: The bill covers the gamut of apparel and fashion accessories like scarves, belts, handbags etc. The period of protection is three years, commencing from the time the item is displayed publicly.

4. Pre-trial proofs: Under the new bill, before a case can proceed to trial, a plaintiff must prove three things:
a. The plaintiff  must prove their design had not existed, that it is wholly original. The plaintiff must prove it is “a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs.” The difference cannot be trivial such as a minor variation in a fabric print, nor a concept within the public domain amounting to trend.
b. The plaintiff must prove a defendant’s design is substantially identical, that the defendant’s design is so similar it is likely to be confused with the original. In other words, a line for line copy akin to piracy without requiring the use of an infringing label.
c. The plaintiff  must prove that the defendant had the opportunity to have seen the design before it was released for public distribution.*

[While the above pre-trial conditions constitute a high barre, it will provide protections to independent designers who are guilty of nothing more than creative synchronicity.]

5. Damages: Under the proposed new bill, damages have been reduced from $250,000 and $5 per copy to a maximum fine of $50,000 and $1 per copy.

Here’s my take on it: The proposed law is much more limited with the burden of proof resting with the plaintiff. It is fair in that designers with the financial resources to bring suit are free to do so without encumbering independents with the bankrupting costs of indemnity.

Now take a look at 4.c. above regarding public exposure of the design. I’m very curious how influential this law will be in modifying designer’s marketing efforts. If designers embrace the law, it is possible there will be at least two reactions. If given designers do not register their designs, they may delay exposure of their products publicly, meaning there could be less dissemination of pre-season runway designs in the blogosphere and in magazines.

Another possibility; if designers take the law seriously, security at trade centric fashion shows is going to be much tighter. It is likely show costs will rise because registration logistics will need to be refined beyond photographing attendees for legal purposes.

On one hand not being able to market in this way will hamper designers in that they can’t drum up pre-season excitement but it prevents one being knocked off before they’ve had time to get products to the store. A reduction of pre-season marketing by the big houses could be an unintended consequence that benefits independents. If the big houses aren’t spending as much on pre-season marketing, the little guy can cut back too and put their money into improved production and product development. In some respects, this law could turn the clock back to a time when we spent more on our product integrity than our brand image.

Further discussion on the intended and unintended consequences of the proposed IDPPPA bill is here.

20 Responses to “IDPPPA: Yet another fashion design copyright law”

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Gorgeous Things
August 6th, 2010
8:08 AM

Interesting. At first glance it looks like it is a saner bill than its predecessor. It will be interesting to see if it actually passes.

Alessandra G.
August 6th, 2010
8:55 AM

4a. The plaintiff must prove their design had not existed, that it is wholly original. The plaintiff must prove it is “a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs.”
—————-
How can one possibly do this?

WendyB
August 6th, 2010
8:58 AM

I agree with Alessandra, that one part sounds like this will apply to very, very few people.

Alison Cummins
August 6th, 2010
9:02 AM

c. The plaintiff must prove that the defendant had the opportunity to have seen the design before it was released for public distribution.*

Wouldn’t that mean that you would want to make your design as public as possible so that nobody could plead ignorance?

Alison Cummins
August 6th, 2010
9:02 AM

Oh – and congratulations! Great work!

Kiran Bindra
August 6th, 2010
9:57 AM

Kathleen, thank you for bringing awareness to the first proposed bill which allowed the current one to be drafted and passed!

kathleen
August 6th, 2010
10:33 AM

You’re right, the benefits the law provides will only be used by very few designers -no different than the previously proposed law. However, unlike the earlier bill, this one won’t put you out of business by forcing you to register. If you want protection and have the financial resources to do it, then register. Due to indemnity under the old bill, you HAD to register or no one would take your work.

Point is, independent designers who can barely scrape up the money to pay their stitchers have a shot now. Under the old bill, they needed a lot more money just to cover legal fees before they even had their first pattern made. I think this is better because it puts the costs on the person who wants protection. Some people don’t want it or need it. They shouldn’t have to pay to protect someone else’s ideas.

Do I think the new bill is perfect? No. I didn’t say that. It’s the lesser of two evils. This isn’t something that is going to bury my readers (or me). You might think it doesn’t help but it’s better than what was previously proposed. The old bill made it impossible for a poor but talented designer to get off the ground. It was kind of dumb too in that it purported to protect independents but the cost of complying prevented any independents from getting in. It protected large established designers at the expense of little guys, eliminating competition.

Wouldn’t that mean that you would want to make your design as public as possible so that nobody could plead ignorance?

You can play it either way. Some would prefer to keep it under wraps because a competitor might have the resources to copy and hit the stores before the other party did. Sure you could sue after the fact but you don’t know that you’d win and it ruins continuity of a collection. Also, hopefully you would have earned more than damages of $1 per copy.

Alison Cummins
August 6th, 2010
10:45 AM

“Some would prefer to keep it under wraps because a competitor might have the resources to copy and hit the stores before the other party did.”

Sure — but is that any different from today?

kathleen
August 6th, 2010
10:58 AM

Yes it’s different from today. The huge push in marketing has been early release to drum up interest in the product line before it hits the stores. Before, marketing was limited to wholesale but now designers are pitching directly to the end consumer even if they don’t sell to them directly. You have to pick your poison. Release early to drum up interest and hope nobody beats you to market that you have to sue later or play it close to get your licks in and worry about someone copying you after the fact (on the downhill slope to obsolescence). That’s why I said this law could turn back the clock

On one hand not being able to market in this way will hamper designers in that they can’t drum up pre-season excitement …A reduction of pre-season marketing by the big houses could …benefit[s] independents. If the big houses aren’t spending as much on pre-season marketing, the little guy can cut back too and put their money into improved production and product development. In some respects, this law could turn the clock back to a time when we spent more on our product integrity than our brand image.

Ross Fashion
August 6th, 2010
11:54 AM

Interesting. At first glance it seems a lot more workable than its predecessor but I am not sure how much of it is going to pass once word gets out. We should probably prepare for a more watered down version that is as bad as the last bill!

[…] Fashion Incubator has a good breakdown of the specifics, including the term of protection, explaining, "The bill […]

Joe Gioconda
August 7th, 2010
12:07 PM

How do you folks feel about the lack of a searchable registry?

Esther
August 7th, 2010
2:50 PM

I just can’t get behind this. To agree to a compromise is to agree that fashion NEEDS protection. IMO, it doesn’t and the other side has failed to prove that existing protections aren’t working. Further this expansion creates more complications to the process. We simply don’t need any more regulations. Some designers are victims of their own marketing success, but it is their own faults. Instead we all have to pay the price. I can easily see some design companies exploiting this law to intimidate others. It’s not to say they will actually have proof of a lawsuit, they just need to threaten it. Perhaps some do it now, but this law almost gives permission. Supporting the lesser of two evils is still supporting evil. In my mind, there is a third choice and that is to leave things the way they are. My hope is this dies in committee again and goes away forever.

[…] Fashion Incubator has a good breakdown of the specifics, including the term of protection, explaining, “The […]

Darby
August 16th, 2010
5:21 AM

I see alot of lawyers loving this.

SE
August 22nd, 2010
5:41 PM

4c “The plaintiff must prove that the defendant had the opportunity to have seen the design before it was released for public distribution,” is horribly misinterpreted.

The actual language is: “[T]he protected design or an image thereof was available in such location or locations, in such a manner, and for such duration that it can be reasonably inferred from the totality of the surrounding facts and circumstances that the defendant saw or otherwise had knowledge of the protected design.”

I am not sure how the poster arrived at the assumption that the bill requires the design to be seen *before* public distribution instead of any other point in time.

Here is a link to the actual language of the bill: http://www.govtrack.us/congress/billtext.xpd?bill=s111-3728

Kathleen
August 23rd, 2010
1:53 PM

It remains a matter of opinion as to whether I “horribly misinterpreted” the wording. I got it straight from the horse’s mouth. The plethora of law blogs have concurred, this entry posted this morning from a fashion lawyer’s blog says:

and (c) the defendant had the opportunity to have seen the design before it was released for public distribution.

Indeed, one could similarly question your cursory summation considering you failed to glean the identity of “the poster” -considering there isn’t a page on this site that doesn’t have my name on it. More to the point, I’ve been working on this bill and the one preceding it for years. Were you party to the years long discussion in our forum along with the tireless activism against its predecessor, you’d be in a better position to pass judgment on one’s supposed intellectual integrity in the matter.

[…] powerful rich nations, expropriating your designs isn’t worth a yawn. Nobody will care about enforcing a law to protect a stupid dress if we can’t build cars or maintain critical communications. To assume anything less is simply […]

[…] 2. If you want to learn about the Innovative Design Protection and Piracy Prevention Act, read this explanatory piece from the Fashion-Incubator. […]

[…] we knew it was coming.  Today, Senator Charles Schumer introduced the Innovative Design Protection and Piracy Prevention Act, or Senate Bill S. […]

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