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Design Piracy Prohibition Act: Historical Regression

Every history student, at some point along her path, encounters the idea that history may be not linear but cyclical.  In its most literal and deterministic form, this theory is the stuff of late-night grad student musings over cheap wine and in practice is best left to fiction.  But every now and then it really does seem that history repeats itself.

This was the case today, when the board of the American Apparel and Footwear Association (AAFA) rejected a compromise text of the Design Piracy Prohibition Act that would extend U.S. legal protection to fashion designs.  The vote followed months of intensive negotiations that had culminated in an agreement between the professional staffs of the AAFA and the bill's chief proponent, the Council of Fashion Designers of America (CFDA) -- an agreement that had carefully and creatively addressed all of the AAFA's concerns except the unstated one:  Some big companies have grown wealthy by copying small-scale, creative designers, and they don't particularly want to stop.

America has a long history of fashion piracy,[1] dating back to the copying of textile patterns in the 19th-century (using technology originally stolen from Europe) and then ready-to-wear garments.  In fact, it's not uncommon for an industry in a developing economy to emerge initially through piracy.  The early American publishing industry is a perfect example, as is China today in many categories.  The next step is for local creators to appear -- think of great American novelists like Mark Twain -- and for the the law to respond by protecting them.  It is this step that certain members of the AAFA wish to postpone for as long as possible, as if 19th-century robber barons had taken the form of 21st-century fashion industrialists.

For various cultural reasons, U.S. intellectual property law hasn't followed the standard pattern of development and embraced fashion, despite the appearance of creative American designers.  It's not for lack of trying, however.  Among the key proponents of protection in the past have been the Fashion Originators Guild of America in the 1920s and 1930s and the National Committee for Effective Design Legislation in the 1950s and 1960s, leading up to what became the current (and still deficient) version of the Copyright Act.  Each time, the powerful retailers and manufacturers who thrived on copying opposed legislative reform -- and small designers remained vulnerable.  It's no wonder that New York Fashion Week, the epicenter of creative design in the U.S., is only 10 years old. 

But times are changing.  Fashion is having its cultural moment in the U.S. -- even the New York Times has chronicled the emergence of fashion designers as the new rock stars (and rock stars as would-be fashion designers).  At the same time, many other nations -- Europe, Japan, even India -- have responded to the increased speed of information and advances in copying technology by extending legal protection to fashion design.  The U.S., a fierce global proponent of intellectual property rights, can't be far behind -- especially given its renewed commitment to fighting counterfeits.  After all, every counterfeit fashion item starts as a pirated design -- there's got to be something on which to place a fake label.  The AAFA has voted with the past, not the future. 

From an intellectual property law perspective, one of the most significant things about the Design Piracy Prohibition Act is that it's not your great-great-grandfather's IP protection.  The bill itself takes into account modern criticism of IP as too extensive and suggests instead a short-term protection narrowly tailored to the fashion industry.  Designers don't really need -- or want -- the full copyright protection granted to books, paintings, movies, or even jewelry.  The compromise text, in particular, offers new and stricter standards for protection and more extensive safeguards that respond to legitimate concerns that had been expressed by some companies.  While no legislation is perfect, the Design Piracy Prohibition Act is definitely IP 2.0, and I'll post the new provisions as they become public.  (Yes, your favorite law prof has been involved in the re-drafting; no, I don't represent anyone in particular -- just truth, justice, and the American way, to borrow the motto of a fellow concerned citizen.)

The Design Piracy Prohibition Act's proponents will, of course, continue to support emerging designers and to fight the wholesale copying of their work, despite the AAFA's action.  The bill's journey through Congress -- it's currently still in committee, and it's a busy year -- may be a bit slower than previously hoped.  Cycles of history notwithstanding, however, you can't stop progress. 

[1] See Susan Scafidi, Intellectual Property and Fashion Design, in 1 Intellectual Property and Information Wealth 115 (Peter K. Yu ed., 2006).

UPDATE:  WWD's Kristi Ellis on the AAFA vote