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April 22, 2009

March on Washington

Their dresses preceded them to Washington, as part of Michelle Obama's inaugural wardrobe.  Now some of the First Lady's favorite designers have taken the trip themselves in order to ask Congress for intellectual property protection for their designs.

Today Narciso Rodriguez, Jason Wu, Maria Cornejo, and Thakoon Panichgul spent the day on Capitol Hill with CFDA executive director Steven Kolb, promoting the new and improved Design Piracy Prohibition Act.  As in earlier incarnations, the legislation calls for amending the Copyright Act to provide 3 years of protection for registered fashion designs -- a modest request compared to the 25 years of design protection available throughout Europe or the 10 years available in countries including Japan and India.  Or the life plus 70 years granted to creators working in copyrightable media.

For Michelle's designers, the recognition associated with dressing such a fashion-forward First Lady is a tremendous honor -- but publicity alone doesn't pay the bills, especially in the current economic climate.  Jason Wu, for example, doesn't get a penny from the sale of still-legal knockoffs of the gown seen 'round the world (below).  And while the automobile industry and the banking industry can go hat in hand to Washington, the likelihood of a bailout for the fashion industry is smaller than a size zero. 

So here's wishing Seventh Avenue's ambassadors good luck in the land of navy blue blazers and khakis!  Hopefully President Obama, whose own all-American suitmaker was recently forced to declare bankruptcy, will have the opportunity to add his own stylish signature to the bill soon.

 Mrs. O in Jason Wu (left) and ABS knockoff

Photos: Darrell G. Mottley, Esq. and USA Today

 

UPDATE:  Many of you have asked for the updated text of the Design Piracy Prohibition Act.  Unfortunately, I cannot distribute the draft, but I will provide a link as soon as its introduction becomes official. 

October 20, 2008

Tough Times and Legal Measures

With graphs of the stock market looking as uneven as a 1920s handkerchief hemline, fashion industry insiders are wondering what is in store for the upcoming season.  Your favorite law prof recently chatted with WWD's Liza Casabona about anti-counterfeiting activity and the PRO-IP Act and with Adrianne Pasquarelli of Crain's New York Business about the effects of tighter credit.  The connection?  Whether the issue is copies or credit, more strategic decison-making is in order. 

 

Thanks to Liza (and co-author Kristi Ellis) and Adrianne for the quotes!  

October 13, 2008

Pro and Con on the PRO-IP Act

Omnia mutantur nos et mutamur in illis.
 
It's no news that Washington's weather forecast calls for winds of change, whether in the form of "change we can believe in " or a pair of self-described mavericks.  For at least one change, however, we won't be waiting until November.  President Bush has just signed the Prioritizing Resources and Organization for Intellectual Property Act, a.k.a. the PRO-IP Act.  Among other provisions intended to enhance IP law enforcement, the law creates a cabinet-level Intellectual Property Enforcement Coordinator, more (or less) popularly known as the "Copyright Czar." 
 
While RIAA has no doubt joined other business proponents of the PRO-IP Act in dancing to its infinite playlist this evening, some public advocacy groups are bemoaning their latest defeat.  
 
But wait -- things are not always as they seem. 
 
Since the Copyright Czar must be confirmed by the Senate, the first appointment to the position will probably not be made by the lamest of Presidential ducks but by the new guy.  And if that new guy turns out to be Obama, it stands to reason that he would turn to his intellectual property and technology advisors, including his former University of Chicago colleague Larry Lessig, for advice.  Given Lessig's longstanding opposition to expansion of intellectual property protection -- including recent editorializing -- the successful advocates of the PRO-IP Act may end up with less than they lobbied for. 
 
Though I seriously doubt that they'll get a refund.  
 

August 09, 2008

ABA IP Section Supports Fashion Protection

Pinstripes and classic tailoring were de rigeur this morning at the American Bar Association's annual meeting, where the Section of Intellectual Property Law convened to consider competing resolutions (2008 Council #1-A and 1-B) on extending intellectual property protection to fashion design.  After giving Robert's Rules of Order a workout, the section members voted to adopt the following amended version of 1-A: 

RESOLVED, that the Section of Intellectual Property Law, believing that there is sufficient need for greater intellectual property protection than is now available for fashion designs, supports, in principle, enactment of federal legislation to provide a new limited copyright-like protection for such designs.

Proposed resolution 1-B was sent back to committee as amended

Washington, are you listening?   

July 24, 2008

Matched Set: Senate Considers Enforcement of Intellectual Property Rights Act of 2008

Driving to the big city and loading up the trunk with counterfeit handbags for a purse party is about to get a little bit riskier.

Today Senators Patrick Leahy and Arlen Spector, along with a bipartisan group of colleagues, introduced the Enforcement of Intellectual Property Rights Act of 2008, a companion bill to the somewhat more elegantly named PRO-IP Act, which passed the House back in May.  (OK, the House version's full name is the Prioritizing Resources and Organization for Intellectual Property Act of 2008, but good acronyms are hard to come by.)  It seems someone figured out that having IP laws on the books is one thing, but actually enforcing them is quite another. 

Among the bill's additions to existing law are the following:

  • Authorization of the Attorney General to bring civil, not just criminal actions -- a potential benefit to intellectual property rights holders who now have to file such lawsuits on their own dime;
  • Enhanced penalties, including doubled statutory damages for counterfeiting (to $1,000 to $200,000 for use of a fake trademark and to $2m for doing so willfully);
  • New forfeiture provisions for property used to violate intellectual property rights -- like that car used to transport counterfeit handbags or a computer used to download music;
  • More enforcement resources and personnel at the local, national, and international levels, including placement of IP law enforcement coordinators in hotspots overseas; and
  • A federal Intellectual Property Enforcement Coordinator, a.k.a. a Copyright Czar. 

The bill isn't law yet -- but with both the House and the Senate focused on IP enforcement, the summer is heating up. 

June 16, 2008

Orphan Works and the Adoption Process

The Orphan Works Act has had a hard-knock life, much to the surprise of its original proponents.  After all, who wouldn't want an orphan to be adopted into a good home?

The rhetoric and intent behind H.R.5889/S.2913, an amendment to copyright law currently working its way through Congress, are simple -- some believe deceptively so.  Because copyright protection lasts for a long time (currently life of the author + 70 years), it can be hard to ascertain who owns the copyright in an older work or to locate the copyright holder.  This difficulty is likely to get worse in the future, since the U.S. in 1989 moved to an opt-out rather than an opt-in system -- in other words, copyright happens automatically.  It's no longer required to register your work with the Copyright Office or print a copyright notice on it (though both are good ideas), so there's no comprehensive record of who owns what with respect to copyright.  This creates problems for a subsequent creator who might want to turn an old short story into a play, restore and reissue a pre-code film, or use an ad from a defunct company on a T-shirt. 

The Orphan Works Act, originally proposed in 2006, tries to remedy this problem by limiting penalties for a copyright infringer who makes a "diligent effort" to find a work's owner before copying it but is unable to locate that copyright owner.  So far so good, right?

Not so fast.  While many agree that the basic idea has merit, the reality is somewhat more complicated.  After almost two decades of telling creators that they don't have to do anything to receive protection, is it fair to penalize them for not showing up in the Copyright Office's searchable records?  What's a "diligent effort" to find a copyright holder?  What's "reasonable compensation" if the copyright holder turns up later?  And -- perhaps most relevant to the apparel industry -- what about the difference between the kinds of works on which it's easy to display copyright notice (a book, for example) and the kinds of works that often don't bear the author's name (like a printed textile that's been cut and sewn into a garment)? 

Graphic artists, photographers, and textile designers have been among those most concerned about the potential effects of the bill, largely because their works are among those most likely to be mistaken for "orphans" when their parents are very much alive and well, thank you.  (It's a bit reminiscent of the controversy that erupted when Madonna decided to adopt an orphan from Malawi, only to learn that his father was still around.  The difference, of course, is that the boy was actually in an orphanage, while accidental orphan works might just be hanging around in public without nametags.) 

Given this ongoing debate, it's interesting that, according to a Textile World report last week, three textile trade associations have decided to support the legislation.  Why the new enthusiasm?

While neither Textile World nor the websites of the American Manufacturing Trade Action Coalition, the National Textile Association, or the Decorative Fabrics Association offer analysis of the decision, a closer look at the House version of the Orphan Works Act may provide an answer.  The following two provisions in the bill would limit its application to textile designs:

(1)  An "exclusion for fixations in or on useful articles."  The bill's limitations on liability don't apply to infringers who incorporate the copyrighted work into a useful article -- like printed fabric sewn into clothing -- and sell it to the public.  From a textile designer's perspective, this preserves the ability to enforce copyright against the Forever 21s of the world, a key strategy for fashion designers who can't protect their garments under U.S. law but can protect their prints.

(2) Visually searchable databases/effective date of legislation.  While the bill in general, if passed, would take effect on January 1, 2009, it would not apply to pictorial, graphic, and sculputural works (including textile designs) until either the Copyright Office certifies the availability of at least two visually searchable databases or January 1, 2013, whichever is earlier.  One of the concerns of textile designers is that it's harder to locate the original creator of a visual work than a verbal one.  This provision would allow a period of time to address that issue and ensure that a truly diligent effort to find the owner of a textile design could be successful. 

In other words, if these limitations remain in the final version, textile designers would be insulated from many of the legislation's immediate effects and would have little reason to oppose its passage.

Congress is rather preoccupied with elections, gas prices, a war, and so forth at the moment, but proponents of the Orphan Works Act may see this move within the textile industry as a sign that the sun will come out tomorrow.  Or at least next term. 

June 13, 2008

Brains v. Beauty

It's brains versus beauty in the competition for coveted H-1B visas -- and the brains are winning.  The annual number of visas issued to fashion models has dropped from 790 earlier this decade to a mere 349 in fiscal year 2007, as America's need for nerds has led to the hiring of more foreign high-tech workers and fewer sexy starvelings. 

U.S. Representative Anthony Weiner seeks to stem this beauty drain via the passage of H.R. 4080, which calls for a new nonimmigrant classification for fashion models "of distinguished merit and ability."  The predictably controversial bill would make available 1,000 visas in a new category associated with athletes and entertainers, creating more competition for U.S. models but arguably preventing some photoshoots from disappearing overseas.

Perhaps fashion models -- or at least the individuals who manage and hire them -- are pretty smart after all.

May 07, 2008

California Dreamin'

Rami KashouDon't you just hate missing a good fight?  When the L.A. County Bar Association invited me to participate in a debate that took place last week regarding the Design Piracy Prohibition Act, I knew I couldn't make it -- but I also knew that a few sparks were likely to fly. 

As WWD reportsRami Kashou of Project Runway fame expressed the creative designers' point of view in support of legal protection:

"I put...everything into my designs," he said.  "When an idea is invented or comes to life, and people associate a label with that idea, I would definitely hope there is some kind of protection." 

Several attorneys, including occasional Counterfeit Chic correspondent David Erikson, whom longtime readers may recognize as Libertine's lawyer, were on hand to fill in the details.  (Thanks, David!)  Present to offer a negative view was a representative of the group whom WWD politely refers to as "vendors" -- clothing manufacturers not engaged in creative design.  (There are other words for them, some more colorful than others, but not all vendors are copyists who oppose fashion design protection.) 

While the bill isn't on the fast track at the moment, Rami offered a look on the bright side:  "Raising awareness is a good start.  That's how things get passed eventually."

Consider your consciousness raised. 

Res Ipsa Loquitur*

Fortune Small Business magazine reporter Maggie Overfelt recently called Counterfeit Chic to ask a simple question:  What happens when, as in the U.S., fashion design piracy is legal? 

Our conversation was interesting and wide-ranging -- thanks for the quotes, Maggie! -- but ultimately, as a lawyer might say, *"the thing speaks for itself":

A few weeks after clothing label Foley + Corinna debuted its spring 2007 collection, co-founder Anna Corinna received a phone call from one of her store employees.

A good customer had recently visited the designer's New York City store and dropped more than $1,200 on four silk dresses for her bridesmaids to wear in her upcoming wedding. Distraught, the bride-to-be said that she had just seen "the same dress" in the window of a discount fashion clothing chain. There, the dress - a polyester replica with identical coloring, cut, and flower design - was selling for $40.

"She returned the dresses," says Corinna, 35. "When one of our designs gets knocked off, the dress is cheapened - customers won't touch it."

Foley+Corinna dress (left) and Forever 21 copy

(Note:  In the example pictured, copyright law might protect the printed fabric, but copyright never applies to the underlying design.)

May 02, 2008

Name is Destiny: Thumbs Up on Pro-IP Act

It's unanimous:  the House Judiciary Committee has passed the Pro-IP Act.  (With a name like that, who could vote against?)  The somewhat controversial bill is focused on IP enforcement, and its provisions include the creation of a new federal IP czar and forfeiture provisions for property used in copying.  But not to worry -- statements from Public Knowledge aside, nobody believes that the forfeiture provisions include, say, fingers used in the process of sewing on counterfeit labels. 

Now it's on to the House floor, where the bill could pass this summer.  A Senate version is still in committee.

Proposed uniform for new IP czar

As for including fashion designs within the scope of IP protection via the proposed Design Piracy Prohibition Act, neither the House nor the Senate has yet taken action.  Tune in next Congress. 

March 13, 2008

Scholastic Clothes

If Thomas Aquinas were alive today, he'd probably have something to say about fashion and copying -- after all, he had something to say about pretty much everything else, including law.

In the absence of direct revelation, Counterfeit Chic surmises that the prolific saint might have approved of CFDA Executive Director Steven Kolb's comment in today's New York Times, which appears in the context of an article by Eric Wilson about a manufacturing trade group's refusal to approve a carefully negotiated legislative compromise.  Kolb noted that the path to passage of the Design Piracy Prohibition Act would now be more difficult, but added, "Either way, people who borrow from others are probably already thinking twice about it."

Thomas emphasized the pedagogical function of law -- while it can't directly "make men good," it can lead them to engage in good acts, which in turn predisposes them to virtue.  (ST I-II, Q. 92, Art. 1.)  Even a proposed law might have a similar effect if, for whatever reason, it causes copyists to think twice. 

And with Thomistic logic on its side, the bill still has a hope and a prayer. 

March 10, 2008

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

February 24, 2008

Counterfeit Chic on NPR: Kudos to Kojo

Last week Kojo Nnamdi of the Washington, DC, NPR affiliate, WAMU, hosted a discussion about the Design Piracy Prohibition Act -- which, perhaps predictably, turned into a bit more of a debate than either Kojo or his expert producer, Tara Boyle, probably intended.  Nevertheless, Kojo did an amazing job of framing and directing the conversation.  And from my perspective, it's always amusing to find my opponent so clueless about the actual issues as to be essentially reduced to arguing, "Well, Congress doesn't know either!" (not true) and making up stories about the origins of the legislation (also not true).  (Hint:  It's the many creative designers out there who are asking for protection -- and in fact, they're asking for less protection than their counterparts in Europe, Japan, etc. currently enjoy.) 

February 19, 2008

Washington Fashion Week 2: The Design Piracy Prohibition Act

Narciso Rodriguez before Congress -- and yes, your favorite law prof just behind him wearing grey (Narciso, of course)Valentine's Day in the U.S. Congress was about anything but eros, or even caritas, as House Democrats refused to extend the government's surveillance powers and Republicans staged a walkout.  Nevertheless, bipartisan pleasantries prevailed in the House Subcommittee on Courts, the Internet, and Intellectual Property's "Hearing on Design Law:  Are Special Provisions Needed to Protect Unique Industries?"  (Hint:  Yes -- for fashion at least.)

The oversight hearing was interrupted twice to allow committee members to go and vote, or otherwise put out fires on the House floor, leaving attendees to mill around in what one described as "a strange cocktail party without drinks."  (Quite a few people took advantage of the breaks to have their pictures taken with the award-winnning fashion designer and witness Narciso Rodriguez.)  Depite the delays, however, there was no doubt that Congress is taking the need for fashion design protection seriously. 

THE WITNESSES

Representative Bill Delahunt (D-MA), one of the original co-sponsors of the Design Piracy Prohibition Act, set the tone for the afternoon with his opening testimony, in which he linked fashion design piracy with counterfeiting.  (After all, every fake handbag out there starts with a copied design, and labels are often added stateside to avoid Customs enforcement.)  Rep. Delahunt further noted that one of the sectors of the troubled U.S. economy that actually produces a surplus in the trade balance is intellectual property, and that passing stimulus packages without recognizing and protecting U.S. strengths is "absurd and ridiculous." 

The next witness, Professor Bill Fryer, offered an overview of the issue of design protection across various industries -- a subject with which he's been engaged for many years.  In response to questions from Representatives Howard Coble (R-NC) and Brad Sherman (D-CA), Prof. Fryer noted that the "purpose of IP is to prevent unfair business practices" and that when a competitor takes apart one of Narciso's designs, measures the pieces, and creates a cheap reproduction, there's not much doubt that copying has occurred.  He ultimately concluded that, though the bill as introduced needs some refinements, industry-specific protection would be a good thing for fashion. 

Narciso Rodriguez testified next on behalf of the CFDA.  His very personal prepared statement told the story of a Cuban-American boy who took out loans to attend Parsons and got his big break when he made a wedding gown for his dear friend Carolyn Bessette's marriage to John F. Kennedy, Jr., only to see it copied nearly 8 million times.  Publicity may be nice, but it doesn't pay the bills -- and Narciso has been copied over and over again, to the point where he has never been able to launch a lower-priced diffusion line himself.  Last year Liz Claiborne acquired an interest in his company, finally giving him a degree of financial stability, but he hasn't forgotten what it's like to be a struggling young designer or how it feels to have what he calls "my DNA" stolen.  When his time was up and he was asked to summarize his testimony, Narciso looked at Subcommittee Chairman Howard Berman (D-CA) and said, "We need your help."  Which pretty much says it all.   

Narciso Rodriguez Fall 2003 original (left) and ABS copy

Continue reading "Washington Fashion Week 2: The Design Piracy Prohibition Act" »

February 13, 2008

Washington Fashion Week: The Design Piracy Prohibition Act

Just when you thought the fashion flock had moved on to London, Milan, and Paris, the focus is back stateside -- at least as far as the law is concerned.  Tomorrow Congress will once again take up consideration of HR 2033, the Design Piracy Prohibition Act, with the extraordinarily talented (and constantly copied) designer Narciso Rodriguez as star witness. 

Ten years ago, when Narciso created an unforgetable gown for Carolyn Bessette's wedding to JFK, Jr., copyists knocked the groom flat in their haste to knock off the bride's dress:

John and Carolyn v. Flat Jack and his not-so-fair lady

But Narciso hasn't forgiven, or forgotten.  Tune in to the live webcast at 2:00 pm EST to hear the two-time CFDA award winner turn the tables on design pirates with his own Valentine's Day massacre.  (Happily, your favorite law prof is already on the record on this issue, but I'll be in the chic cheering section -- wearing Narciso, of course.) 

Counterfeit Chic will, of course, be back soon with a report on the hearing.  In the meantime, check out the comprehensive new Stop Fashion Piracy website, your resource for the voice of creative design.

December 17, 2007

What Not to Wear, Canine Edition

Fans of the U.S. television show What Not to Wear (yes, a knockoff of the British original) will recognize host Stacy London in her spinoff show, Fashionably Late.  Some of the red carpet gowns that Stacy recently featured may also look suspiciously familiar -- though the long-limbed models are of the four-legged rather than the two-legged kind. 

 

This isn't the first time that Counterfeit Chic has covered the Little Lilly canine couture copies -- or noted that while Lara Alameddine's doggie dresses themselves do not violate intellectual property laws, use of celebrity photos or an image of a trademarked award might.   

America Ferrer's Monique Lhullier gown and copy

Interestingly, despite the outcome of the widely publicized "Chewy Vuiton" case, American designers have thus far shown little interest in limiting knockoffs intended for pets.  The proposed Design Piracy Prohibition Act makes no mention of animal clothing in its definition of fashion designs, so presumably even an exact copy of a Shih Tzu's sweater or a poodle's poncho would be fair game after passage of the bill (apart from any logos or labels).  A canine version of a couture gown might might meet the test for determining infringement of the original, but it is by no means certain that the adapted version would be sufficiently similar to the original to trigger protection -- even if marketed as a copy. 

Perhaps the canine couture market is too small to attract attention, or perhaps our biological predisposition to favor neotenous creatures makes us unwilling to censure anything that makes adorable little dogs even more so -- at least the eyes of those who regularly match their pets to their handbags. 

But with all due respect to Ms. London's guest, Counterfeit Chic's four-legged friends appear to prefer wearing only their own original -- and fabulous -- furs.   

November 17, 2007

Give 'Em Hell, Harvey!

Movie mogul Harvey Weinstein may not be a longtime fashionista, but he's quickly becoming a dedicated follower of fashion.  Not only does the Weinstein Company co-produce Project Runway and co-own the Halston brand, but under the tutelage of his fiancee, Marchesa designer Georgina Chapman, he's developed a tremendous appreciation for the talent and hard work behind the glamour. 

WWD's Marc Karimzadeh reports that when a manufacturer boasted of plans to copy a Marchesa gown straight off the red carpet, Weinstein was shocked to learn that U.S. fashion designers have little or no recourse against design piracy.  Since then, Weinstein has made it his business to change the law.  In his words:

I might not know how to sew a dress and I might not know how to design a piece of jewelry, but I'm pretty good in a street fight and I bet you I get this bill [the Design Piracy Prohibition Act] passed.

Not a bad legacy for "a boy from Queens whose socks never matched." 

October 19, 2007

Hail to the Chief

Last month I had an online conversation with Felix Salmon of Conde Nast Portfolio about why the New Yorker column on design piracy was essentially an economic fiction.  (Remember the bad joke about the physicist, the chemist, and the economist stuck on a desert island?  "....and the economist says, 'Assume we have a can opener'"?  The column bore approximately the same relationship to reality.)

Now the New Yorker has published CFDA President Diane von Furstenberg's letter in response to the column.  Madam President, you have the floor:

New Yorker 10-22-07

October 04, 2007

Sticking It to 'Em

Sheet of counterfeit Lacoste alligatorsKids love stickers.  Geek kids use them to decorate notebooks, slacker kids use them to personalize skateboards, and jock kids add them to football helmets. 

Some adults love stickers, or their embroidered equivalent, too.  Especially since certain add-ons can turn generic, legally imported merchandise into far more lucrative lucrative counterfeit goods. 

WWD's Ross Tucker and Liza Casabona report that with the crackdown on counterfeit goods at U.S. borders, there is an increasing trend among counterfeiters toward bringing in unlabeled knockoffs and adding the fake labels and logos stateside. 

This practice of finishing goods in the U.S. in order to evade anticounterfeiting enforcement activities isn't new.  Even at the point of sale, it's not uncommon to buy an unlabeled fake and have the seller stick on a fake logo afterwards.  I've regularly mentioned this practice as one reason among many that a law against design piracy makes good sense -- why should the government spend time and money on other anticounterfeiting legislation if enforcement can be so easily evaded?  In the absence of laws against copying designs, however, smart counterfeiters are apparently taking ever greater advantage of their ability to import unlabeled goods, manufacture the small and easily hidden labels locally, and bring the two together when the coast is clear. 

Of course, not all counterfeiters are particularly good at this sleight of hand.  Some get caught with stacks of fake labels or rooms full of embroidery machines.  Others simply can't match the label with the product.  Every now and then online auctions include Burberry plaid handbags with Kate Spade labels, for example, or a mixed tangle of Prada and Chanel charms.  My personal favorite is a dead ringer for a black Fendi "B" bag -- with a triangular metal Prada label stuck right in the middle. 

All of which gives a whole new meaning to "sticker shock." 

September 19, 2007

Why Protect Fashion? A Conversation with Felix Salmon

Nostalgic for your days on the debate team?  Head over to Felix Salmon's finance blog, Market Movers, at Conde Nast Portfolio for our discussion of fashion and copying -- and find out why I believe the New Yorker should stick to fiction actually labeled as such.  Many thanks to Felix for his great questions, and to Gerald for suggesting the conversation. 

September 04, 2007

Copying Clothes Over a High-Speed Connection

What would life be like without the mixed blessings of the internet?

In today's New York Times, Eric Wilson goes behind the scenes at Simonia Fashions, one of many companies waiting for the first photos from New York Fashion Week to appear online.  Not because the proprietors are interested in fashion's new creative direction, mind you, but so that they can pick out the most popular designs and get cheap copies into stores -- often before the originals are available for sale. 

Naturally, the retailers selling the knockoffs disclaim any actual knowledge of copying, pointing back to their suppliers as the source of the controversial clothing. 

In the U.S. all of this occurs without interference from any of those inconvenient intellectual property laws that might actually protect creative fashion designers.  Interestingly, the company featured in the article outsources its manufacturing to India, where design protection does exist.

It's enough to make one long for the good old days days of rough pencil sketches and descriptions sent via telegraph.

Tory Burch (left) and Simonia Fashion's Blue Plate special (right)

Bonus point:  Who is the "expert working with the designers’ trade group" who in the article offered a rock-bottom, minimum estimate of the percentage of knockoffs in the apparel and accessories market?  You guessed it.  And just for the record, since some of you have asked, I do not now nor have I ever represented the CFDA; all of my opinions are my own and are the product of my academic research.  All of my work on this issue, moreover, has been pro bono -- both in the literal sense of "for the good" and in the more colloquial sense of "free of charge." 

August 13, 2007

Once Bitten, Twice Shy

The Senate version of the Design Piracy Prohibition Act, S1957, has only just been introduced, but it's already having a deterrent effect.

Anna Corinna USD $384-480, Bitten $9.95

After the New York Times illustrated Eric Wilson's article on the bill with an original Anna Corinna "City Bag" (left) next to a near-identical but much cheaper "City" bag by Sarah Jessica Parker's Bitten line for Steve & Barry's, the guilty retailer hastened to apologize.  WWD quoted from its statement:

A prototype of a bag Sarah Jessica Parker and the Bitten design team never approved for production was inadvertently produced by Steve & Barry's.  When the error was discovered, production of the bag was immediately stopped.  It was never put on sale at Steve & Barry's stores, and images of it were eliminated from all marketing materials.  This unfortunate incident has resulted in Steve & Barry's examining its entire production process and making appropriate changes to help ensure this type of error doesn't happen in the future.

Is Steve & Barry's sincere, or is SJP just trying to avoid the bad publicity garnered by other celebrity copyists?  Time will tell.

For the moment, however, the blogosphere is watching.  The suspicious similarity between the bags was originally noted on Fops and Dandies (after a picture of the Bitten version appeared on NYT fashion critic Cathy Horyn's blog)  then republished by Fashionista before being picked up by the actual print edition of the Times.  Nice catch!

August 08, 2007

Standing Behind S1957

Not content to just drop a bill in the hopper and head off on vacation, Senator Chuck Schumer today held a press conference in support of S1957, the Senate version of the Design Piracy Prohibition Act.  Joining him were Rep. Jerry Nadler and a formidable phalanx of fashion folk including Jeffrey Banks, Narciso Rodriguez, Nicole Miller, Marc Bouwer, Richard Lambertson, Yeohlee Teng, Dana Foley, Susan Posen (CEO of Zac Posen), Stan Herman, and Steven Kolb. 

Both lawmakers noted the need to close the loophole in intellectual property law that leaves fashion unprotected, unlike books, movies, or music.  As Nadler put it, "Kate Winslet's movies are protected from pirates.  Kate Spade's handbags are not." Of course, Winslet is British, so if she were to create handbags, her national law would protect them as well -- but you get the point. 

Now if we could only get these guys out of their standard-issue dark suits and red ties -- in August heat and humidity, no less.  I suppose some things you just can't legislate.   

For those of you who have been asking about the text of S1957, here's a preintroduction copy as submitted, complete except for the current list of co-sponsors.  Stay tuned for the official version.  

UPDATE:  For more on S1957 and HR2033, read on:

And most recently,

August 06, 2007

Matched Set: Senators Introduce Design Piracy Bill

Counterfeit Chic loves the buzzing Bs of summer -- baseball, beaches, and last-minute bills.  The U.S. Congress is in recess, but Senator Chuck Schumer (D-NY) didn't leave Washington before joining a bipartisan group of colleagues in introducing a Senate version of the Design Piracy Prohibition Act, S1957, on Thursday.  Now HR2033 has a beach blanket bingo partner. 

July 11, 2007

Saints and Sinners

Claire V Josephine bag USD $95Laura Bradford isn't just aiming for fashionable fame and fortune -- she's on a stylish trajectory to sainthood.  Her line of handbags, Claire V., was conceived on a trip to Cambodia as a way of aiding its impoverished people, and the bags are crafted by survivors of land mine injuries.  More recently, Claire V. has begun a collaboration with widows in Afghanistan to showcase their skilled embroidery.  And on top of all that, 10% of sales go to education and health programs for women and children in Asia. 

The silk bags, which sell for $100 or less, have developed quite a following.  The Josephine, pictured, has appeared on Desperate Housewives -- and among the collections of design pirates as well.  As a local station reported:

Soon after Roanoke based Claire V opened, Laura Bradford answered a call from a friend who'd seen knockoffs of her popular handbags in a national catalog. 

"And there are a lot of bags that make it out onto the street before we ever see a sample of it," says Bradford. 

Since only those Claire V. bags with surface designs (like the Josephine) are eligible for copyrght protection, most of the line is fair game for copyists under U.S. law.  Bradford notes that she "could be out of business if someone copies [her] line within a month or two, and not be able to do anything about it."

But fear not.  Claire V. is based in Roanoke, Virginia, part of the congressional district of Representative Bob Goodlatte, who last year and again in the new Congress introduced a bill that would extend short-term intellectual property protection to fashion designs, including handbags. 

In other words, the Design Piracy Prohibition Act (currently H.R. 2033) may not yet be law -- but knocking off a Roanoake designer is like bearding the lion in his den. 

June 13, 2007

C & D

With prints back in fashion and knockoffs in the news, the fashion community has begun to keep an eye out for suspicious sartorial similarities.  Check out these contributions from nitro.licious, Fashionista, and Fashion Theory, respectively:

Anna Sui v Forever 21

Tibi v Mandee

Marc by Marc Jacobs v Forever 21

And now the legal question:  If the original dresses (left) were subject to design protection in the U.S., as they are in Europe and Japan and as proposed in the recently reintroduced Design Piracy Prohibition Act, would the copies infringe that protection?

Answer:  No.  The dress designs as a whole weren't copied; only the fabric patterns are the same.

Q:  So these copies are legitimate?

A:  No, I didn't say that.  If they're actually copies, they may very well violate the U.S. law as well as that of other countries.  The question is, which type of law?

copyrightEach of these fabric prints may qualify for copyright protection, in the U.S. and pretty much everywhere else.  That's how DVF could bring her much-discussed lawsuit against Forever 21.  New legislation won't change that in any way.  Just like images created with ink on paper or paint on canvas, prints created with dye on fabric are subject to copyright protection -- and have been under U.S. law for over half a century.

Much of the time, however, this copyright is held by the company that created the fabric, not the designer who created the garment.  Some designers sell a large enough volume and are successful enough to design their own prints on a regular basis, in which case the designer holds the copyright, but most designers simply purchase material from fabric mills.  If the order isn't large enough to be exclusive, this can result in 2 designers using the same fabric -- just as if 2 individuals went to the same store and bought a few yards each from the same bolt of fabric.  This isn't noticeable if the fabric is, say, black wool crepe, but printed cotton is another matter. 

If the prints on the left were created by the designers of the original dresses (presumably Anna Sui's claim, since she's brought a lawsuit against Forever 21), then the copies may very well infringe copyright.  If, however, the printed fabrics were simply bought from the same source, no problem.   Another possibility is that the fabric prints were copied but are in the public domain, like older vintage works -- again, no problem. 

Whatever the story with these particulalr fabric prints, the original garment designs cannot be protected in the U.S.  Of course, in these examples the garment designs weren't copied, so the question of infringment would in any case be limited to copyright in the fabric prints (or possibly patent, but that's another matter). 

designWhat design protection offers is the ability to protect not just the print, but the overall design of the garment.  The idea is to give fashion designers rights to protect their designs.  At the moment, fabric designers get protection in the U.S., while fashion designers don't. 

In other words, if our intrepid fashion bloggers are correct, then the copyists responsible for the images on the right aren't exactly legal luminaries.  They engaged in unauthorized duplication of the only protected part of the original dresses -- the fabric prints -- while ignoring the unprotected garment designs. 

Call in the lawyers -- it's time to send out the C&Ds. 

June 04, 2007

Knockoff Moment at the CFDA Fashion Awards

Derek LamAt the Swarovski crystal-studded and carbon-neutral CFDA Fashion Awards this evening, the fashion was real -- even if one of the celebrities was fake. 

Your humble blogger almost spilled her champagne laughing when, in a nod to the organization's continuing legislative efforts to fight knockoffs, an Ellen DeGeneres impersonator took the stage to present the Accessories Award.  MADtv's Nicole Parker wore a white pantsuit reminiscent of Ellen's Oscar attire and draped authentic handbags designed by nominees Derek Lam, Marc Jacobs, and Michael Kors around her neck and over her arms.  Happily for winner Derek Lam, the statuette was genuine as well. 

Congratulations to Derek and all of the other honorees -- and to the CFDA on the 25th anniversary of the Fashion Awards.  (Just don't call them the fashion Oscars -- unless you're speaking Italian.)

May 24, 2007

Welcome California Lawyer readers!

Thanks to California Lawyer Senior Editor Thomas Brom for an article in the May issue exploring the debate over the Design Piracy Prohibition Act.  Although the editor-in-chief elsewhere describes fashion as "a world where idealism is perhaps in shorter supply," I had to laugh when I read perhaps one of my most ominous quotes ever:  "Every young designer has a knockoff story to tell.

Sad but true, and most accurately quoted.  Still, I didn't mean to sound quite so much like the opening line of a gothic tale of fashion horror -- especially for readers in sunny California.  Then again, Hollywood is all about drama. 

May 23, 2007

The Chattering Classes

For your humble blogger, April and May have been a blur of lectures and debates on intellectual property law and fashion, organized by everyone from the Copyright Society in New York to the Festival International de Mode et de Photographie in Hyeres, France, and punctuated by the reintroduction of the Design Piracy Prohibition Act as H.R. 2033 (formerly H.R. 5055).  Have PowerPoint, will travel.

It was a relief, then, to put up my heels and let someone else do the talking for a change.  William M. Borchard, an author of the first draft of the bill and still a supporter, invited friends, clients, and colleagues to a breakfast seminar to discuss not only fashion law but also current business strategies, courtesy of Marc Beckman.   Although Bill noted that design legislation has been introduced 90 times in 93 years to no avail, he's still in favor of closing the legal loopholes that leave fashion designs largely unprotected -- a man after my own heart. 

Either that, or we're both part of the Red King's dream

April 26, 2007

It's baaack!

Nicole Miller goes to Washington

Longtime readers of Counterfeit Chic may remember the Design Piracy Prohibition Act, legislation that would extend a limited version of copyright protection to clothing.  (For my Congressional testimony in support of H.R. 5055, click here and here.)  Pictured left:  Nicole Miller with Representatives Bill Delahunt and Carolyn Maloney at yesterday's press conference to mark the bill's re-introduction for the new Congress.  For more on this proposed law from Nicole Miller, Diane von Furstenberg and other luminaries, read the latest update from WWD--and be sure to click today while its free!

March 20, 2007

Euro Trend Report

Anticounterfeiting efforts are on the agenda in the European Parliament today, with a scheduled commitee vote on creating an EU-wide criminal law to combat the flood of fakes.  Debate centers on the scope of the law, which could either focus exclusively on large-scale copyists or target consumers as well, as both France and Italy have. 

So if you're planning a shopping trip, think twice before buying a replica of that Bulgarian bag or Slovenian CD you've been coveting.  Like your weight in kilos instead of pounds, fines calculated in euros rather than US dollars only seem lower.

March 15, 2007

UnFURgiven

After last December's debacle over fur-trimmed jackets wrongly labeled as faux, and the additional sensation caused by headlines calling the fallacious fuzz "dog fur," the Humane Society has demanded that the U.S. Federal Trade Commission take action.  The petition, available here, requests that the FTC seize mislabled garments and levy fines against retailers ranging from Bergdorf's to Burlington Coat Factory.  In addition, the Human Society is backing federal legislation to further restrict the sale of fur. 

Whether or not you have a dog in this fight, ironically taking place during the warmest winter on record worldwide, the cultural debate is inescapable.  At a lecture at Parsons The New School for Design earlier this evening, Business Week editor Bruce Nussbaum challenged an audience of design students to challenge their assumptions about issues such as ethics and sustainability.  Is a mink coat somehow evil, or is it an example of a sustainable, organic, durable, reusable, biodegradable product that might be preferable to one fashioned from synthetic materials?  A shocking question to many, no doubt, but leading an examined life (or career, for that matter) calls for more than easy inquiries. 

Is wearing fur about fashion, cruelty, warmth, conspicuous consumption, the natural order, inhuman behavior towards non-humans, control, freedom, or all of the above?  The debate continues -- and this time, it's legal.

January 09, 2007

Knight in Shining Armor

Many lawyers and law students remember their first days of law school, when they dreamt of justice and worthy causes -- only to find that most of their studies were about rules and regulations.  Some attorneys, however, steadfastly pursue their missions and are recognized accordingly.  Alain Coblence is one of these legal luminaries.  

The newly dubbed Sir Alain, if I may mix traditions and honorifics, was recently named a Chevalier of the French Legion of Honor.  He has been a consultant to the Council of Fashion Designers of America, the Federation Francaise de la Couture, and the Camera Nationale della Moda Italiana, and he practices in both New York and Paris.  All of this leaves one small dilemma, however:  metallics are "in" for Spring, yes, but where does one actually find a suit of shining armor these days?

Congratulations!

 

September 28, 2006

Ready for My Close-Up

Hollywoodtown, here I come!  Many thanks to Stephen Galloway of The Hollywood Reporter, Esq.  for his smart and stylish article, "Fashion Police," in this week's issue -- and for dubbing your humble blogger "The Legal Fashionista."  (I'm sure some of you won't let me forget that one for a while!)  Although Stephen declines the title of "fashionista" for himself, he tells me that he wore a Varvatos jacket for our telephone interview, so he certainly knows his threads.  And his words. 

And now, if you'll excuse me, I have to powder my prose before the next take. 

September 11, 2006

Welcome Wall Street Journal Readers!

An article in today's Wall Street Journal asks, "Can Fashion Be Copyrighted?" -- and, like the post-recess and pre-election Congress, probably leaves the question unanswered for now. 

As WSJ reporter Ben Winograd was preparing this article (with co-author Cheryl Lu-Lien Tan), he and I had an interesting conversation.  Ben described himself to me honestly as neither a fashionista nor a student of intellectual property, and seemed frankly a bit skeptical of the whole enterprise -- but as a journalist and thus a member of a copyright-dependent industry, he expressed interest in the broader issues at hand.  Thus the following excerpt from our discussion, as quoted in today's article:

Fashion design has historically fallen outside the scope of coyright protection because it was considered a craft, not an art, dating back to a time when clothing served to simply cover the body, says [your humble blogger].  Today, "fabric is a means of expression, just like pen or ink," she says. 

Thank you!  Although to clarify, I think that clothing has been a communicative medium (deliberate or incidental) from time immemorial.  A chieftan's robes or a beggar's rags both send a message, and so did Adam & Eve's fig leaves.  As with other technologies, however, the last couple of centuries of industrial development have increased the expressive potential of the medium -- and the opportunities for plagiarism.  And, of course, the need to consider legal intervention to protect creators from copyists. 

Overall, I'm very pleased that Ben picked up on the historical art/craft distinction that I've been discussing publicly for some time now and even described it in the opening of the article as the "central question" to be resolved in the debate over protection for fashion design.  (Definite "yes!" from this reader.)  Of course, my argument is that the distinction is a false one, imposed on us by history, but I'll save my questioning of the entire structure of the IP system for another day.

I must add that I was amused by the article's quoting the sanctimonious concerns of copyists that legal protection might harm creative designers or the industry -- talk about crocodile tears!  That line of argument says more about the speakers themselves and their use of others' work (in any medium) than about the fashion industry.... 

The Usual Suspects:  A Versace gown (on Evangeline Lilly) copyied by A.B.S.

September 08, 2006

The President's War on Copying

To kick off New York Fashion Week, Wall Street Journal reporter Teri Agins asked fashion icon and CFDA president Diane von Furstenberg a few questions about the state of the industry.  Here's what DVF had to day about the counterfeit question:

WSJ:  What are the biggest challenges facing the industry today?

Ms. von Furstenberg:  .... Another problem is counterfeiting and how quickly they just replicate designs from fashion shows.  They copy you, and it gets into the market before you even ship.

WSJ:  Why is the American fashion industry pushing for copyright protection for apparel makers in the U.S.?

Ms. von Furstenberg:  At first, my attitude was, "Oh well, my clothes are copied everywhere.  There's nothing you can do."  And then I started to see how they pull it from fashion shows and copy it.  You can see it on eBay.  I started to say you have got to have some rules.  You have to do something.

Laws are created to intimidate people [with the threat of litigation], to tell them no, you don't do that.  The more I talked about it, the more I realized this is good for everybody.  Even if you can't stop everything, they wouldn't be boasting about it.  By passing a law and protecting design, you elevate the whole industry.

WSJ:  People argue that copying propels the fashion cycle because it creates trends.

Ms. von Furstenberg:  You will still have trends.  Why all of a sudden is everything yellow?  Why all of a sudden do young girls wear combat boots?  It starts from the street.  That's the mystery of fashion.

August 01, 2006

Ms. Scafidi Goes to Washington, Part II

So you watched the video and read the written testimony on H.R. 5055, the "Design Piracy Prohibition Act" -- but where, you asked, is the text of the opening statement?  Right here, as delivered to Congress last week.  Enjoy!  (And yes, it contains a few jabs at opponents' testimony -- some more subtle than others.  But if you come to a hearing with a quote from Chanel but no historical context, or with inaccurate statistics, you should expect a bit of polite correction.  For the record.)

 

July 31, 2006

Ms. Scafidi Goes to Washington

I'm back in New York after testifying before Congress on intellectual property and fashion design, and frankly I'm still surprised and delighted that the issue is being taken seriously.  Within a few years I've gone from not writing on the subject at the advice of older academic colleagues -- despite the fact that fashion is a $350 billion plus industry -- to speaking to the nation's lawmakers about it.  Of course, having tenure helps. 

I promised more details about the hearing on H.R. 5055, so here goes:

Favorite moment:  Representative Maxine Waters turning on her girl power and owning the room.  As she said to one of the bill's opponents, "You asked what Congress knows about it?  When you talk about women's fashion and design, fortunately there are a lot of women in Congress now.  We know a lot about it."  And she did, citing issues regarding quality control, artistic vision, and consumer expectations.

Second-favorite moment:  Representative Darrell Issa asking me who I was wearing -- actually an important and relevant question.  (He's got 37 patents of his own, so he knows a few things about innovation.)

What to wear to Congress:  So what was I wearing?  Luckily I thought about this in advance -- the hearing was about IP and fashion, after all!  Washington is fairly conservative in fashion terms, and a congressional hearing is a serious matter -- so a dark suit.  Also considering the setting, and the July weather, a skirt rather than trousers.  An American designer, in order to be suitably patriotic, but also a young designer for whom this legislation would really matter.  And ideally something classic, but with a twist. 

The final choice?  A fashionably black Narciso Rodriguez skirt suit from a couple of years ago.  The jacket looks like a bolero over a fitted top, but is actually one piece, and the skirt has a pencil silhouette.  100% cotton, thank heaven, and unlined but beautifully finished on the inside (like all of Narciso's work).  For accessories, the much-copied Lanvin tulle-wrapped faux pearls, my grandmother's pearl stud earrings for luck, and pointy black Manolo pumps.  (Like I said, the suit was American....)

Since Narciso Rodriguez is a designer whose work has been copied, I was able to turn myself into Exhibit A when Representative Issa asked -- an unexpectedly nice touch. 

The issues:  Stay tuned!

July 28, 2006

How I Spent My Summer Vacation

Yesterday the U.S. House of Representatives took on the issue of fashion design and intellectual property, and your humble blogger was one of two witnesses invited to testify in favor of the bill.  (The other was menswear designer extraordinaire and CFDA board member Jeffrey Banks.)

Why in favor?  In shortest possible terms, because young designers are being hurt by the lack of protection under U.S. law, and because the bill calls for a very short, reasonable term of protection (3 years total, as opposed to the standard copyright term of life of the author plus 70 years). 

I have much more to tell you -- from legal analysis to my solution to the all-important question of what to wear to Congress -- so please check back in over the next couple of days.  In the meantime, the webcast is available here, and my 5-minute opening statement starts at approximately 35:30. 

May 21, 2006

Iranian Fashion Police

Reports last week that a proposed Iranian law would require religious minorities to wear identifying badges reminiscent of the yellow stars worn by Jews under the Nazi regime were apparently false.

The actual draft legislation, however, is not exactly a cause for celebration.  Conservative members of parliament, seeking to halt the influence of Western fashion on urban Iranian women, have turned to cultural protectionism.  According to an Associated Press translation:

"In order to preserve and strengthen Iranian-Islamic culture and identity, consolidate and promote national clothing designs and guide the manufacturing and marketing of clothes, on the basis of domestic forms and designs, as well as to encourage the public to refrain from choosing and spending on foreign designs not appropriate to the Iranian culture and identity," the Culture and Islamic Guidance Ministry will form a committee made up of representatives from various ministries, the state media and the parliament culture committee to follow through this law.

In other words, no more headscarves slipping back to reveal -- gasp! -- hair; no more ankle-baring trousers, let alone jeans; no more coats tailored to suggest that somewhere underneath all that fabric might be an actual human form. 

Promoting local culture is a good thing, as is encouraging local industry.  In light of the existing restrictive dress code for women, however, these paeans to traditional culture and to emerging designers seem disingenuous.  Iranian consumers aren't buying the story, either:

In the modern metropolis of Tehran, many women were also on the defensive.

"They sugar-coat it at first, but they could move on to make everyone wear a certain outfit," said Manijeh Afzali, a 47-year-old resident of the city spotted while out shopping for clothes.

Her 20-year-old daughter was equally cynical: "I'm not sure about the patterns they are going to put out. They will probably be tacky and like villagers' clothes," she said.

There are plenty of Western trends that, as an aesthetic matter, probably shouldn't be copied.  (Legwarmers outside of a dance studio, etc.?  Why exactly would anyone pursue the illusion of having calves wider than her thighs?)  On the other hand, there are some appealing Middle Eastern uses of color and pattern.

But in this case, Iran's proposed deployment of the fashion police sounds more like an effort to silence women's freedom of expression -- a right that should always be in style.

April 03, 2006

I'm Just a Bill

For those who have asked, here's the text of the Design Piracy Prohibition Act, which Rep. Bob Goodlatte introduced in Congress last week.  The gist?  Fashion designs would receive 3 years of protection under the Copyright Act, provided they were registered within 3 months of being made public, after which they would enter the public domain. 

What's all of the business about "vessel hulls"?  In 1989, the Supreme Court struck down a Florida state law protecting boat hull designs on the grounds that it was preempted by federal law.  The boat design armada invaded Congress, claiming that without protection, there would be hull to pay -- and in 1998, they received a 10-year term of protection.  H.R. 5055 would amend the Copyright Act to strengthen protection for vessel hulls and add fashion designs.  (Sounds like an inspiration for a new collection -- navy and white nautical stripes, espadrilles, red tape....)

While most IP law paints with broad brush strokes, an industry-by-industry approach to design protection may strike the right balance between creativity and copying.  (See e.g. Dan Burk & Mark Lemley on how patent law has developed de facto distinctions among areas of technology.)  The standard copyright term is now life of the author plus 70 years -- but who wears century-old fashion?  Even I clean out my closet more often than that. 

March 31, 2006

Floor Show

From the Congressional Record, here is the fanfare for H.R. 5055 (drumroll, please):

Goodlatte_excerpt

Continue reading "Floor Show" »

March 29, 2006

Legislation is "In" for Spring

As some of you know, Counterfeit Chic (or rather, the mild mannered professor writing it) has been quite busy with the real world of late.  An imminent legislative proposal in one's area of expertise has a way of demanding attention far beyond the usual academic debates -- and with a new bill on the intellectual property protection of fashion design about to be introduced in Congress, I feel a little bit like a scholar who was quietly studying ancient Aramaic and looked up to find Mel Gibson at the door.  (Of course, discussing this issue with people immersed in it is nothing but a pleasure.) 

As the latest battle lines are drawn -- Harper's Bazaar's Anticounterfeiting Summit v. Marie Claire's "Splurge or Steal?" feature, young designers v. established copyists, and almost everyone v. Urban Outfitters -- I have a strange sense of déjà vu.

In 1930, Mrs. Condé Nast, wife of the magazine magnate, sent the New York Evening Telegram a letter in which she stated:

The women who pay several hundred dollars for original gowns have the right to expect that their gowns will not appear on the $10.75 racks in the stores the next week.

Sound like a familiar issue?

Tomorrow, the following will appear in the New York Times:

"Piracy in fashion is rampant," [designer  Narciso] Rodriguez said, recalling a lunch meeting he had with senators last July, when he held up one of his $1,500 designs next to a newspaper advertisement for a nearly identical dress at Macy's, selling for $199.

The prices may have changed, but the story remains the same.  In every generation for the past century, fashion designers have protested their lack of protection under American law -- and little has changed.  Why?  And is anything different this time? 

My short answer is that U.S. culture, history, and politics may finally have developed a new fashion sense.  Stay tuned for more about the past, present, and future of this debate.

In the meantime, take a look at the illustrations offered by the Times (Urban Outfitters at $48 (top); Bottega Veneta at $1,680).  And yes, I can personally confirm seeing both in stores over the past month. 

 

March 14, 2006

Fashion Capital

At a CFDA reception that I attended earlier this evening, Nicole Dreyfuss was one of the young designers on hand to remind Washington that the fashion industry remains concerned about knockoff artists. 

Nicole, who designs (and originally knitted) a successful line of handbags under the label Margaret Nicole, noticed last year that Abercrombie & Fitch was selling a suspiciously similar bag -- for a rock-bottom price.  While Nicole's excellent media and legal connections helped her stand up to A&F -- her mother is NYU IP law professor Rochelle Dreyfuss -- the designer is concerned about others who generally lack protection under U.S. law.  

Most appropriately for an industry associated with creative/expressive women, the venue for the event was Sewall-Belmont House, the headquarters of the historic National Women's Party and former home of its founder and Equal Rights Amendment author Alice Paul.  Love the subtext! 

February 20, 2006

Whose Sari Now?

The Indian state of Orissa is taking steps to protect its unique, indigenous textile designs, which are being copied and exported by manufacturers in other regions of India.  Under the Geographical Indications Act, the state will patent original "ikat" designs and methods in order to protect local weavers.

Orissa - Ikat patterns

As Diana Vreeland famously declared, "Pink is the navy blue of India!" -- and color is just the beginning.

February 01, 2006

Celebrate Black History, not the Black Market

February is Black History Month -- and once again, it's also Anticounterfeiting Month in the City of New York, according to Mayor Bloomberg's official proclamation today at the Harper's Bazaar / Kirkland & Ellis LLP Anticounterfeiting Summit.  In his words, "Counterfeiting is not a victimless crime."

At last year's inaugural event, Valerie Salembier of Harper's Bazaar brought together industry representatives, law enforcement, lawyers, and lobbyists to draw attention to the issue; this year, the focus was on solutions.  Kirkland & Ellis's crack team of anticounterfeiting lawyers, including Joe Gioconda, described the benefits of an strategies for civil litigation at a pre-luncheon seminar.  Later speakers focused on enforcement efforts, including the New York Police Foundation's "Madison Avenue Blue" event, during which retailers will donate the proceeds from selected blue items (get it?) to fund undercover anti-piracy operations.  Education -- of both Western consumers and developing countries like China -- was also on the agenda. 

And it wouldn't be a fashion event if France, which implemented new anticounterfeiting measures last year, didn't have the last word:

January 15, 2006

Keep on Truckin' -- At Your Own Risk

New York State Senator Frank Padavan and Assembly Member Mark Weprin, both of Queens, have introduced a bill that would provide for seizure and forfeiture of vehicles used in the trafficking of counterfeits.  So if you're thinking about loading up the trunk on Canal Street with "superfakes" and driving out to Westchester to host a purse party, consider borrowing your ex's car.

December 31, 2005

Year in Review III: Counterfeit Conversations

There may be neither societal consensus nor legal clarity regarding copying, but that doesn't prevent it from being an ongoing topic of discussion within the luxury goods industry.

From a January 2005 feature in Harper's Bazaar magazine and accompanying Anticounterfeiting Summit in New York to a November/December 2005 WIPO symposium in Italy -- and many events in between -- concerned parties have come together to knock knockoffs.  And they hope you're listening.

Police raids and lawsuits have some effect on the distribution of counterfeits, but where there's consumer demand, there will be supply -- witness the "world's oldest profession."  If people stop buying illegal fakes, however, manufacturers will no longer bother to produce them. 

But how to reach the fashion-savvy but impecunious or price-resistant consumer?  The quality argument is often unpersuasive, especially to the person just seeking a disposable fashion fix.  Appeal to the rights of designers generates little sympathy when they are charging $15,000 or $20,000 for a handbag.  Laws aimed at punishing consumers, like the new legislation in Europe, are unpopular and difficult to enforce.  Attaching social stigma to counterfeits, however, is a relatively new approach.

So, let's talk.  What's wrong with counterfeits?

The sale of counterfeits is controlled by organized crime?  This one is too easy.  Prohibition, bootlegging, Al Capone, remember?  If you declare alcohol, counterfeits, or anything else illegal, it won't be sold at a PTA bake sale. 

Counterfeits fund terrorism?  Could be.  But didn't they (whoever They are) just say the same thing about drugs?  And fear of terrorism as a justification for government action doesn't have quite the same rhetorical value as it did a few years ago.

Counterfeits are manufactured using child labor?  Well, major corporations like Nike have been accused of the same thing.  Yet this claim tugs directly at the heartstrings of consumers, particularly women, and it is elaborated in the current issue of Harper's Bazaar in "The Human Cost of Fakes."  As the poet Margaret Widdemer wrote nearly a century ago, "I have shut my little sister in from life and light/(For a rose, for a ribbon, for a wreath across my hair.)"  Buyer's remorse, anyone?

Whether all of this reflects a desperate/manipulative effort by manufactuers to protect profit margins, a genuine desire to eliminate a social evil, or perhaps both, I leave for you to decide.  One thing is certain, though:  this conversation will continue into the new year and beyond.

Happy 2006!