Proposed law to destroy 90% of design businesses

Posted by Kathleen Fasanella on May 14, 2009 at 1:13 pm / Intellectual Property, News and Events / Trackback

I should have posted this two weeks ago; I’ve been in denial. It seems so surreal; between CPSIA, Proposition 65 and now the Design Piracy Prohibition Act, there seems to be nothing less than a full scale war against the apparel industry. Have you forgotten about the Design Piracy Prohibition Act? Well, it’s been resurrected and presented to Congress (HR 2196). It’s nothing short of a bold power grab to protect wealthy socialite designers at the expense of independent designers, putting over 90% of them out of business. Consider this scenario of what will happen if this bill is passed:

Your name is getting out there, picking up more doors everyday and your accounts love you. Now that your fabric samples have arrived, you’re inspired and happily sketching your new styles. This is sure to be your best collection ever! So then you reach for the phone to schedule a slot to have your patterns and samples made. But on the other end, the pattern maker or sewing contractor refuses to work with you. Your heart sinks through the floor, why? You’ve got an established relationship, you’re a great customer with regular work and steady pay but still, no one will take your contracts. In fact, they’re shutting down themselves.

Why no one will take your work:
Let’s say we help you produce this line, you sell it and make your pile crumbs. Then -thanks to the influence of the Council of Fashion Designers of America (CFDA, membership by invitation only) and Congress- somebody can come out of the woodwork and claim it is their design, they own it and now you owe them. If they registered the design and you didn’t know it, this could be perfectly legal. Of course you didn’t copy them but it won’t matter. The fact that society designers have been copying nameless unknown independent designers for years doesn’t even register. Even Diane Von Furstenberg, the leading champion of this bill recently got caught doing it. Because you don’t have any money, this party will sue everyone in your production and retail chain. That means pattern makers, contractors and the stores who bought your stuff. So in the interests of avoiding law suits, any service provider is going to require you prove you own it. It’s even worse for retail buyers who face potential criminal prosecution for dealing in pirated goods. Everybody who helps you or buys from you is going to require you to prove ownership of your concept before they’ll have anything to do with it. If wealthy society designers like Diane Von Furstenberg have their way, this could become an unfortunate reality. Paradoxically, CFDA is telling Congress they’re protecting you.

You think you (or we) won’t be sued in today’s era of lawsuit happy plaintiffs? Have you ever heard of a patent troll? A patent troll is someone who enforces patents they have no intention of manufacturing, against alleged infringers. It’s somebody who makes a living filing legal papers, they don’t actually make anything. In this climate, you think there won’t be fashion copyright design trolls? Right, and the fashion industry is one big family working happily together amid resounding choruses of Kumbaya. Good grief, there are churches tattletaling on other churches to state health departments over competing bake sales! If the morally superior are ratting each out over cup cakes, you think they won’t over caftans? Folks, this is going to get ugly. The CFDA, living in happy-land as they are, deny this will happen saying similar laws haven’t encouraged law suits in France or Japan yet neither of those two nations have culture as law suit happy as the United States.

It’s been two years since I last wrote of this and I couldn’t imagine it’d go anywhere considering how it so obviously favors the wealthy and famous at the expense of designers barely eking out a living but this thing has grown legs; if H.R. 2196 becomes law, it is certain to kill what’s left of the industry except for wealthy socialite fashion designers with in-house legal departments. In one fell swoop, this law will put over 90% of us out of business. Even me. Fashion-Incubator will become an artifact, who will need it? You all will have to speak out. Congress has been misled, they think they are helping you!

The cost of doing business has just gone up astronomically. You’ll have to hire a lawyer, pay for searches through a design database of all existing design registrations. You thought a trademark or logo search was bad? I have no doubt there’s over 10,000 clothing designs out there for every logo. This will cost a fortune. But, you’ll have to do it if you want to stay in business. And those of us left standing will have to have our own lawyers to check up on you and draw up contracts and buy more insurance, our prices will double if not triple. Somehow I don’t think consumers will be happy. Assuming we could afford to shop at Neiman’s and Nordstrom’s, few society designers cut anything larger than a size 12 and I for one am not thrilled at the prospect of mini-skirts, navel grazing tops, tepid/garish colors of whatever constitutes the fashion trends dictated by elite designers.

Even with proof of registration in hand, you will have to produce your registered design exactly as sketched. No design changes or iterations in process are allowed, otherwise you’ll have to start over and re-register a new design. Forget shortening that sleeve, changing the shape of that neckline or tapering the pant leg of that prototype. So what if it ends up looking lame and you have to start all over? That will be the new cost of doing business. Gee, how long will it take to get a line to market?

You know what the worst part is? A law professor specializing in Intellectual property told me that the standard for determining the innovation of a given design is not based on expert opinion. No no, the legal definition is based on the opinion of a non-expert, what the average Joe thinks looks similar. In other words, someone like your significant other who doesn’t even notice you’ve cut or colored your hair or are wearing a new outfit and yet they’re supposed to be the judge of a sleeve design detail? WHAT?! The average person just doesn’t notice that much* and no contractor will stake the viability of their business of what constitutes a copy if the litmus test is determined by John Q Public. So, every designer would need paper. Good luck finding a contractor otherwise.

I ran a poll two years ago when it was known as H.R. 2033, explaining what all of this meant. I’ll rerun it again below. At this writing, over 86% are opposed to this legislation and fewer than 2% of you believe this law will protect you even if it passes.

Edit 11/23/12
Vizu polls have closed down. Below is a screen capture of the poll results.

Rather than drone on, I’ve parsed this entry into two parts. In the second portion, you’ll read how the head of CFDA, none other than Diane Von Furstenberg herself and the key proponent of this law was recently caught knocking off an independent designer. In the meantime, sign the petition to register your opposition to this bill that will surely ring the death knell of what’s left of domestic manufacturing. More lurid explanation of how this law will affect your business is here.

————–
*The average person doesn’t notice that much. Test your powers of observation by watching this video. Count the number of times the people wearing white shirts pass the basketball. Do not count the number of passes from people wearing black shirts. I’ll post the answer later on in comments.

41 Responses to “Proposed law to destroy 90% of design businesses”

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Heather
May 14th, 2009
3:48 PM

Surreal. What next?

Esther
May 14th, 2009
4:52 PM

It never ends. I just don’t know if I have enough energy to fight another war. I’ve already partially left the biz. I can take some small comfort in that I have the skills to clothe my family for when it becomes too expensive to buy clothing off the rack.

dosfashionistas
May 14th, 2009
5:31 PM

Almost 10 years ago now, when the last fashion company I worked for, Sunny South, went out of business, I ran into an older fabric salesman I had known for years. We talked about the decline of companies in Dallas, and he told me a story.

It seems he had run into a colleague at lunch one day, and as they were bemoaning the current decline of business his friend said, “Sol, We are lucky men!”

“How so? Haven’t we just been talking about how bad business is?!

“Right Sol, but just think. We could be 20 years old and just starting out in this business.”

Count me in on the petition and any other way I can help. This is ridiculous! I’m with Esther, Grandma can earn her keep by keeping the family clothed. Sarah@dosfashionistas

Vicki
May 14th, 2009
9:14 PM

Wow, just thought I would check in on how things have been going since I put my children’s clothing aside to work for a paycheck. Esther is right, it NEVER ends. Doesn’t congress have enough real problems to spend their days discussing and voting on? Isn’t there enough back biting, snippety stuff going on already?

penelopeelse
May 15th, 2009
5:56 AM

I’m often puzzled by the makers of new laws: do they never think through probable scenarios, given human nature? Yes a law may sound reasonable, but what will people actually do to protect themselves, or get round it to achieve their needs, or exploit it? THAT’s the reality.

Shirley Willett
May 15th, 2009
6:31 AM

Last June in Newport RI, I spoke at the Copyright Society, “A Position Against a Copyright Law in Fashion Design”. I said much of what the young DEs are saying here and a great deal on the history of the the apparel industry in America. I said what Kathleen says, “The battle is between big brand, celebrity designers, most of whom do not do their own designing, and tiny DEs who have no voice in Washington – and with the copyright law would soon be extinct.” You can read a lot more of what I said in my blog, http://fashionsolutions.blogspot.com/2008/06/position-against-copyright-law-in.html

In the Spring, 2009 my paper was printed in the “Entertainment, Arts and Sports Law Journal”. We, as small design entrepreneurs, must fight against the powerful big corporate designers. I have been doing it all my life, even as a delegate to the White House Conference on Small Business. Thanks Kathleen for helping to get together some strength in unity.

Best wishes to all of you.
Shirley Willett

Nadine
May 15th, 2009
7:02 AM

Admittedly I’m not well versed on this issue so forgive an overly simplistic comment. Is it not possible for DE’s to create “prior art” by mailing their technical sketches for each design to themselves certified and not open them until an issue goes to court? This is what I heard is the way to establish your ownership of a design when getting a patent is not possible for fashion designs. Also to comment on “..legal definition is based on the opinion of a non-expert, what the average Joe thinks looks similar…”. I’m not sure this happens 100% of the time. Again, I’m no expert but at least in NYC where many experts in this field abound, faculty at fashion schools are often called to be expert witness in court cases over design issues. My dept chair has gotten these requests many times to be an expert witness in cases where a designer was claiming a knock-off was in violation of their design rights. How it goes in the rest of the country I can’t speak to. Just glad that the wonderful FI is bringing thought provoking topics and action items to our desktops on a regular basis. ~Nadine

SarahM
May 15th, 2009
7:14 AM

What happens to Trade Dress here? Are our current designs grandfathered in? I’ve had the same styles since 2005, that’s well over the 6 months. Piracy stinks, but this is not a smart way to fight it.

Marialexandra
May 15th, 2009
7:20 AM

Thank you once again Kathleen, for informing everyone, this time with this new headache/battle. I have never been able to prove it, but I have been copied by 2 designers in the past and because I am much smaller than them, have not been able to do anything about it. If this law is passed, and it happens again, most likely, they would have the time & money to copyright the designs and I would be the one in hot water, and then out of business. This is a creative business (its supposed to be) and there can not be a copyright put on a creative mind. What’s next, copyrighting the colors designers use? Thats MY shade of blue! Or the t-shirt, who’s going to get the rights on the t-shirt with a v-neck? It will kill all of us and leave 10 clothing companies open, the ones with the lawyers and the time and money to copyright whatever they please.
Its no secret large fashion companies have interns and assistants go out to stores with corporate cards and are instructed to buy what they believe their company can use and sell as their own. Marc Jacobs was in the hot seat about a year or so ago for stealing a design from a Dutch man, when someone from the company went out “hunting” for a repeat pattern design and found a windmill design he loved. Marc Jacobs company reproduced it thinking the Dutch man would never find out and made millions, until the painter’s son found out and yelled loud enough to get paid for it, but after the “robbery” had taken place.
Its hard enough to survive in this industry, to be original, to be creative, to get the attention of the buyers and the media. I pride myself in not copying others, in being as original as I can within my style of design, and I still feel threatened as a business person with this suggested law.
I hope everyone signs the petition. :)

Kathleen Fasanella
May 15th, 2009
8:51 AM

Hey Nadine (LTNS!) It has to be entered in a registered database. Otherwise someone could come after you and register the “same” thing. It’s the same as patents. Rights are assigned to the first person who patents it, not who created it which while there are grounds by the first party, you’re still talking about a protracted legal battle few can afford. It’s no consolation to be right if you’re bankrupt.

RE: expert witnesses…they don’t get to decide. Jurors do. It is like any other situation, it doesn’t matter how right an expert witness is, it matters how much jurors believe them to be credible and LIKEABLE. It’s a popularity contest.

TWITTER CAMPAIGN: Please use “#fashionlaw” as a hashtag to spread the word of the petition. I’m keeping track of names of people who are signing :). The message I’ve been posting on twitter is:

#fashionlaw RT Proposed law will put 90% of fashion designers out of business. Save fashion! Sign petition http://bit.ly/169xYn

I also reserved @fashionlaw as one of my alternate twitter ids (http://twitter.com/fashionlaw), go there to follow me. I created a profile for that twitter id so people will know what’s up. Now I just need to figure out what to use for a bio photo. help please.

cdbehrle
May 15th, 2009
10:16 AM

Where on earth would these companies come up with the sheer quantity of product if not by knocking it off? They rarely hire anybody who has even a clue about design, just creative directors (read: stylists) merchandisers (read: bean counters) and cad artists (read: lackeys). Actual design has very little to do with this business anymore-certainly at the level of the bigger companies mentioned.

I guess if it passes in a very short time we can all look forward to wearing government issue jumpsuits since, face it, if this passes the big companies will have nowhere to go for “inspiration” at any level and they will eventually be spending all their time/resources suing each other for what scraps of originality they can manage on their own and will wind up cannibalizing themselves.

There is hardly any reason left at this point for new talent to start up in the industry. Are they figuring they may as well just put it out of it’s misery? I guess this is the way to do it.

oah
May 15th, 2009
10:38 AM

I am just sitting in my design4 class, wondering what we will be teaching our students. Fashion History will become a class about what you can’t do.
Who will own the rights to the pencil skirt I wonder?

Marketa
May 15th, 2009
11:07 AM

It just gets better and better, doesn’t it… !

kay
May 15th, 2009
12:05 PM

The co-sponsors of the bill are here:
http://thomas.loc.gov/cgi-bin/bdquery/D?d111:1:./temp/~bd2mdO:@@@N|/bss/111search.html|
(or search HR2196 at: http://thomas.loc.gov/) and it has been referred to the House Committee on the Judiciary, who are: http://judiciary.house.gov/about/members.html

Brenda
May 15th, 2009
4:33 PM

I’m officially hanging my hat up, I hate to give up on a dream I’ve had for many years but frankly it is not worth it at this point. The cost of complying with all these requirements and defending my work would far exceed any type of “revenue” I may obtain…bottom line, not worth it, at all.

Sonia Levesque
May 15th, 2009
5:56 PM

Yikes! Sounds like a horror movie scenario. My first reaction is : Will this have any effect in Canada?
Sure hope not… But as we say here in Quebec; “When The States have a cold, Canada sneezes”.

*sulks and ponders*

Oil Ragz Clothing
May 15th, 2009
7:27 PM

Welcome to the post american world, as Fareed Zakaria says. Whereas the world at large no longer cares about one another, nor does it care about another persons creations. Only about what he/she can get from it.

Sad sad day.. And by the way, I am a “former” commercial photographer of 24 years that started a clothing brand just to be expressive with my ideas and creations. You think this industry is bad, try photography on for size. God help us all….

al sutherland
May 15th, 2009
8:16 PM

im just starting and im ready to end but NO WAY!
Lets all teach congress a lesson
LETS ALL GET NAKED!!!
REGISTER THIS!!

CFDA im registering the inie
who wants to register the outie?
its ALMOST laughable!!
Should i stop before i get started!
i hope my humor is well recieved?

Erika Rodriguez
May 16th, 2009
10:25 AM

I guess Diane needs to be able to protect herself if/when she copies again.

The video was funny. The costume threw me off for a moment!

Wendy H.
May 16th, 2009
9:55 PM

This is depressing.

I signed the petition, I am “looking forward” (sigh) to what else I can do to stop this insanity . . .

Marlene S
May 16th, 2009
10:36 PM

Kathleen, before I start my rant, I think you should use ‘Justice’ (the goddess) for your twitter. She is the logo the attorneys use. She is standing tall with a sword in one hand and the scales of justice in the other. Sometimes she’s blindfolded and sometimes she’s not. Maybe, you can draw an incredible “wrap dress” on her. In my humble opinion, I think everyone on the hill is blindfolded. I wish they were all gagged too. Thank God they take a summer break.
Back in the 70’s, (ouch) I was working for a company who had this great reversible wrap dress. It was such a hot style, we did it in about 10 different colorways. Guess who else had a hot wrap dress at the same time. She became known for it and it became her signature style.
cdbehrle is correct in all that was mentioned above. I knew a designer that used to go to the fabric stores and pore through the pattern books for ‘inspiration’. I heard of some that go shopping on Rodeo and take pictures with their camera phones. I don’t agree with this, but I also know that there is nothing new under the sun. Oah asks, who will own the rights to the pencil skirt? Who, indeed. The one with the most money wins again. I thought they were just after the children’s manufacturers, but they have no intention of stopping there.
Here’s a small scenerio of what’s going on in my family.
Me…Children’s manufacturer (CPSIA)
My BIL…GM dealership (no letter yesterday!)
My DB…sewing contractor (China)
I’ve been feeling down this last week, but this just gives me a little more steam to want to keep fighting!
Kathleen, I don’t know how you do it all, but you give me the inspiration to go on. Thank you for all you do!

Grace
May 17th, 2009
7:35 AM

I also find it offensive as a consumer how much she is charging for a knockoff.

According to http://network.nationalpost.com/np/blogs/theampersand/archive/2009/04/23/copycat-style.aspx#comments, the original jacket was sold for $280 (probably Canadian $).

The knockoff, in a cheaper fabric and produced in larger quantities, was priced at $875 USD. What justifies that price?

When I read Dana Thomas’ Deluxe, How Luxury Lost Its Luster, it really rankled to learn that 10% of the price of luxury goods went to production while 11% went into marketing. What is a conscientious consumer to do? For now, so many have just shut their pocketbooks, which harms all players in the garment industry, both good and bad.

Angela Johnson
May 17th, 2009
10:13 AM

I’m going to register the loin cloth then. That was the precursor to clothing, so that means I’ll own the rights to all clothing designs!

bente
May 18th, 2009
7:38 AM

I always knew the fashion biz was one of the most “rotten” businesses, but I still wanted to enter it! A lot of times even the “big” once come up with the same “inspiration” and get copied.
I have been “sneaking” around with my drawing pad shoulder to shoulder to other more or less known designers in Paris shops during PV. Some pick the feeling, some the odd stithces, some pick colors, some see a new colar, a sleeve and some just see the whole piece!
If we fight together we can perhaps help to turn the business a bit less rotten. Thanks Cathleen for trying to make it better.

Jane in KC
May 19th, 2009
1:11 PM

I’m more glad than ever that I sew 90% of my own clothes!

Kathleen, I do appreciate all the information, but why you are surprised at this is a bit confusing. I say that because the government gives ample evidence of wanting to control everything! Why not the clothes we wear, too?

Marketa
May 21st, 2009
7:28 AM

Interesting discussion going on over here

http://www.39thandbroadway.com/fashion-industry-piracy/

Wacky Hermit
June 5th, 2009
2:31 PM

Does this apply to crochet patterns too? I never thought I’d see the day when I’d be *happy* CPSIA is putting me out of business…

Alison Cummins
June 5th, 2009
3:05 PM

Marketa, I followed your link and was struck by the commenter making a parallel with late-medeival sumptuary laws: only rich people may legally be fashionable.

Ouch.

Karen J.
June 11th, 2009
9:08 PM

I read this proposed bill on Thomas’ the other day, and what struck me (in addition to all the specific points made above) was at the very end – Sec. 2, (j) which adds “Section 1333 (b) “Additional Requirements- The database under subsection (a) shall contain a substantially complete visual representation of all fashion designs that have been submitted for registration under this chapter…”

How does one create a searchable visual database?? And who’s going to pay for it? No fees to search – that’s in the bill, too.

Maybe that’s where we should look for that next job – the Patents and Copyrights IT Offices?

Here’s the Summary, which makes it sound innocuous enough:
http://thomas.loc.gov/cgi-bin/bdquery/z?d111:h.r.02196:

And here’s the actual language:
http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.2196:

I don’t know if “signing a petition” will help, but writing directly to your Representatives and Senators will…

Bright Blessings ~ Karen J.

Homage or Plagiarism?
June 23rd, 2009
3:01 PM

[...] Exploring themes from last week’s entry on the proposed design piracy law, do you think copying is ever permissible? I don’t mean that in a legal sense but an ethical one. I don’t intend to be judgmental but I tend to frown on it. However, Grace poses the question in such light I wonder if I’m a hypocrite. She asked me if I thought this was homage or plagiarism[...]

[...] It’s really easy to pick these out. Here’s a recent example that was posted to my last entry on the Design Piracy Protection Prohibition Act: Author: sewing scott (IP: 216.46.89.93, [...]

[...] we all can do) and there are links to contact senators in the quote from Kathleen Fasenella’s Fashion Incubator [...]

[...] 7/31/09: This bill is still in the works. More recent entries are Proposed law to destroy 90% of design businesses and Fashion-Incubator, a good idea while it lasted. We have an active petition I hope you’ll [...]

Sandra B
September 12th, 2009
9:42 AM

Following links from the Timo Rissanen post led me, circuitously, to this site, a discussion on how the fashion industry’s approach to copying and appropriation could be the model for other industries to follow.
http://www.learcenter.org/html/projects/?cm=ccc/fashion
It makes the pro-copyright law designers seem like they realise their way of business is in its’ death throes, and they must use every trick in the book to cling on a little longer. The cool kids in the home sewing world are using the creative commons license to share patterns as PDF files through networks such as BurdaStyle.com

Penelope
January 5th, 2010
9:55 PM

The ball was passed… 14 times. I think. Although I had 12 at first count.

kathleen
January 6th, 2010
3:46 AM

heya Penelope, you’re the only person to watch the video and respond to the quiz. I was disappointed so few did. I think most people didn’t notice it.

Speaking of, the point of the quiz/game isn’t about how many times the ball is passed but whether people notice (in the midst of counting passes) the big guy in a gorilla suit walking through the middle of the game.

IP Update: DPPA & Fashion Law Blog
March 10th, 2010
11:57 AM

[...] sew and sell it yourself. Unfortunately, 90% of what’s left of the domestic apparel industry will be out of business, no matter how stringent one’s ethical standards are. DPPA amounts to legislating a situation [...]

[...] 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. [...]

[...] to date.  While its immediate predecessor, the Design Piracy Protection Act, would have reportedly destroyed up to 90% of design business, the new and improved IDPPPA has successfully pleased two chief organizations in the industry, the [...]

[...] who have been utilizing fashion design IP protection for some time.  The IDPPPA succeeds the highly criticized Design Piracy Prohibition Act (a previous post on IP Osgoode investigated the DPPA, found here).  [...]

[...] hope that the law is marginalized,” says Fasanella, the firecracker behind Fashion-Incubator, a blog that acts in part as an industry watchdog. “You have the bar of cost being constantly [...]

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