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. 

Posted by Susan Scafidi at 11:42 AM | Permalink

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.

Posted by Susan Scafidi at 09:50 AM | Permalink

Don'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 reports, Rami 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. 

Posted by Susan Scafidi at 09:32 AM | Permalink

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."

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

Posted by Susan Scafidi at 01:31 AM | Permalink

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.

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. 

Posted by Susan Scafidi at 08:11 AM | Permalink

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. 

Posted by Susan Scafidi at 07:32 AM | Permalink

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

Posted by Susan Scafidi at 11:28 PM | Permalink

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.) 

Posted by Susan Scafidi at 09:56 PM | Permalink

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.   

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

Posted by Susan Scafidi at 01:30 PM | Permalink

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:

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.

Posted by Susan Scafidi at 11:21 PM | Permalink

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.   

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.   

Posted by Susan Scafidi at 02:01 PM | Permalink

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." 

Posted by Susan Scafidi at 08:12 PM | Permalink

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:

Posted by Susan Scafidi at 07:11 AM | Permalink

Kids 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." 

Posted by Susan Scafidi at 08:48 AM | Permalink

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. 

Posted by Susan Scafidi at 04:28 PM | Permalink

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.

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." 

Posted by Susan Scafidi at 01:51 AM | Permalink

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

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!

Posted by Susan Scafidi at 11:42 AM | Permalink

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:

• Karen Matthews for the Associated Press
• Eric Wilson for the New York Times
• Rosemary Feitelberg for WWD
• CFDA press release

And most recently,

• Robin Givhan for the Washington Post

Posted by Susan Scafidi at 11:59 PM | Permalink

Posted by Susan Scafidi at 12:19 PM | Permalink

Laura 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. 

Posted by Susan Scafidi at 02:59 AM | Permalink

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:

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?

Each 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). 

What 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. 

Posted by Susan Scafidi at 01:07 PM | Permalink

At 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.)

Posted by Susan Scafidi at 01:09 AM | Permalink

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. 

Posted by Susan Scafidi at 10:05 AM | Permalink

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. 

Posted by Susan Scafidi at 08:35 AM | Permalink

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!

Posted by Susan Scafidi at 11:12 AM | Permalink

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.

Posted by Susan Scafidi at 12:25 PM | Permalink

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.

Posted by Susan Scafidi at 11:42 PM | Permalink

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!

Posted by Susan Scafidi at 02:53 PM | Permalink

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,