In an effort to discourage knock-offs of designer clothing, U.S. Senator Chuck Schumer (D-NY) introduced legislation in August that would provide fashion designers with limited intellectual property protection. Schumer’s view is that with the legal support offered by the Innovative Design Protection and Piracy Prevention Act, the fashion industry’s revenue and jobs would stay safely in New York.
Despite the fact that counterfeiting products of any type is already illegal—those guys on Canal Street hawking $25 Louis Vuitton bags have always had to pack up and run when they sight a cop—the proposed legislation is unnecessary and even harmful.
Copyright protects original expression, but does not protect useful objects. For example, if you create an original sculpture, it is copyrightable; if you drill a hole through that sculpture and wire it to make a lamp, the lamp is not copyrightable. And while some of the freakish get-ups worn by the models on the Fashion Week runways may strain the definition of “useful object,” they are indeed articles of clothing and therefore fall within the category of useful objects.
Schumer’s legislation further complicates matters by limiting its protection only to those designs designated “extremely unique and extraordinary,” which must feature distinguishable “non-trivial and non-utilitarian variation” from previous similar articles of clothing. Details such as fabric patterns or colors cannot figure into the mix, and a litigant would have to prove that the offending design is “substantially identical” to his or her own. Under those conditions, Tim Gunn is going to have be our next Supreme Court appointee.
Why this new standard should be injected into copyright law is in question as well. “Uniqueness” is a term used in patent law that has never been applied to determine eligibility for copyright. Originality is what earns you a copyright, and it has to nothing to do with producing a groundbreaking design. Originality merely means you did not copy it from anyone else. Compelling copyright to bear a burden it never has before, at a time when intellectual property rights are under fresh attacks daily, will erode the concept of copyright even more dramatically.
It is not clear why the Senator, along with the Council of Fashion Designers of America and American Apparel and Footwear Association, who worked with him on the legislation, is so convinced clothing designers need this protection now, when they never did before. The fashion industry has survived—and thrived—for decades in New York City without such protection.
The legislation is being touted as balancing the need to protect innovation in the fashion industry with keeping clothing “affordable.” But there is no reason to believe that the proposed intellectual property rights will reduce the prices of the designs they protect. If anything, those reaping the benefits of this superfluous arm of IP law are likely to be the wealthiest and most successful designers, who are the only ones likely to be able to take advantage of the suggested new restrictions on such copying.
But there would be others who would feel a negative effect if the legislation passes: the city’s countless other creative professionals, who rely on the law as it exists to safeguard their work. They don’t need their protections, or the process of proving infringement, made more difficult by needless tinkering with the standards of copyright protection.