U.S. Congress. House. Design Piracy Prohibition Act. 110th Cong., 1st sess., H.R. 2033. (25 April 2007).
This is one piece of legislation proposed to protect fashion designs from piracy. This Design Piracy Prohibition Act would basically give fashion designs protection for three years after the application for registration is submitted. Within this act, the terms fashion design, design, and apparel are defined so as to create a definition of what can actually be protected under this bill. The reason these are defined within this bill is the ambiguous nature of these words. Without a clear definition, there would be way too many interpretations of the clauses of the Design Piracy Prohibition Act. The bill also states the terms for submitting a design for copyright protection. Basically, any rights to protection are lost if the design is not submitted within three months after the design is made public. The bill also briefly lists the monetary penalties for any pirates if found guilty of copyright infringement.
This bill is an important source for any paper on fashion copyright since it provides an example of the types of legislation that would supply design protection. Even though this bill has not gone through, many of the Design Piracy Bills follow this basic structure for fashion copyright. Therefore, this source provides an example of how effective bills can be in providing protection. In addition, many sources reference this bill and its contents. So, it is useful to have the actual bill and its wording to look back upon and analyze as a primary source. The bill basically amends title 17 in the United States Code to provide for fashion design protection. By looking at how proponents of fashion copyright will protect fashion designs, I can decide, within my paper, whether these laws are beneficial or effective enough to even bother enacting. Thomas, the site where this bill is located, also provides a list of sponsors for this bill. There are only fourteen sponsors, which creates suspicion as to how effective or plausible this bill may actually be. Information like this surrounding pieces of legislation make bills useful sources.
U.S. House of Representatives, Committee on the Judiciary, Subcommittee on Courts, the Internet, and Intellectual Property. Testimony of Steve Maiman in Opposition to H.R. 2033. 14 February 2008.
This source is the testimony of Steve Maiman, co-owner of Stony Apparel, against the Design Piracy Prohibition Act. Maiman is completely opposed to extending copyright protection to fashion design. According to Maiman, fashion has grown into a huge, thriving, competitive industry without any help from copyright protection. Nothing has changed recently within the fashion industry to suddenly need copyright protection now. He claims that enacting bill H.R. 2033 will be detrimental to the fashion industry and economy, reduce creativity, and hurt the consumers. He speaks against fashion design protection proponents by stating that customers in fancy boutiques are willing to pay more for apparel despite pirates creating imitation designs. He then addresses the negative consequences this bill will have on the fashion industry, especially firms like Stony Apparel. This bill will make financing firms extremely difficult since retailers will immediately return anything claimed, even falsely claimed, to be infringing. Invoices would become meaningless. Since retailers would also be held liable with this bill, retailers would refuse to do business unless the manufacturing firm can provide compensation for any possible loss. This new demand for compensation will create an even larger finanacial risk for manufacturers and retailers. The fashion industry is already an area filled with risk and this bill will simply add another layer of risk since everyone will have to now deal with the possibility of frivolous law suits. This fear of infringement will lead to an increase in the prices of apparel since designers will need to hire lawyers to interpret their every design out of fear of suit. In addition to price inflations, the innovation rate would slow down. However, the biggest consequence of this bill would be the effect on designers interpreting a trend. If designers are too scared to work with a trend, one of the biggest methods the industry uses to attract consumers will be cut off. This bill will only aid rich, established designers who can afford lawyers. However, the young generation of rising designers with fresh, new ideas will disappear. Fashion copyright will hurt designers, consumers, manufacturers, and retailers. Only lawyers will benefit. Benefitting lawyers is not worth splitting America into a class that can purchase copyrighted clothes and a class who cannot afford to anymore.
This is a very crucial source since it provides a primary account of a fashion manufacturer. Since it is a primary source, it provides real concerns plauging manufacturers and store owners within the fashion industry. Maiman actually has to deal with the consequences of the bill. So, what he has to say comes from experience and is very reliable. Although he is obviously biased since he has a stake in the outcome of this war, his arguments arise from legitimate concerns he would have to deal with if this bill passed. Secondary sources are just opinions of people outside of the industry looking in. He basically structures his argument around the negative consequences of enancting the Design Piracy Prohibition Act. He also addresses the concerns brought up by the other side and then explains why these are unreasonable. By showing the possible consequences of going through with fashion copyright for players in the industry besides himself, such as consumers, designers, and retailers, he effectively makes his position against protection appear to be beneficial for the majority of the industry.
Hedrick, Lisa J. "Tearing Fashion Design Protection Apart at the Seams." Washington and Lee Law Review, Vol. 65, No. 1, pp. 215-273, 2008. http://ssrn.com/abstract=1127190
This article presents both side of the copyright debate more in terms of the pieces of legislation proposed for fashion copyright. It goes through the pros and cons of either side of the fashion copyright argument and then argues against the enactment of these laws. Fashion design falls within the negative space of copyright protection. Therefore, designers cannot prevent knockoffs of their original designs. This paper acknowledges that these knockoffs are harmful as they hurt the designer's profits and reputation due to the low quality of imitation products. Piracy causes almost $12 billion of loss in the fashion year annually. The paper is set up this way and the author then skillfully uses all these facts that seem to support fashion copyright to show why copyright laws are ineffective in stopping any of these problems. First of all, terms such as fashion design, apparel, and design are extremely ambiguous but are used within the Design Piracy Bills. This is simply because fashion is hard to define and consequently very difficult to protect. The author also explains that fashion also cannot effectively use patents, trademark, trade dress, or copyright (due to its utilitarian function) for protection purposes. In addition to the vagueness of fashion lingo, the Design Piracy Bills would simply cause congestion of the courts with senseless cases due to the extreme subjectivity that would be involved in fashion court cases. Even if the bills went through, there are so many loopholes that pirates can find within these bills to basically render any protection useless. Finally, Hedrick looks at the fashion laws in the European Union and shows that even with laws hardly any cases come to court regarding piracy. However, she points out the cultural differences in that America is much more litigious and these laws could force designers to pay large amounts of money for lawyers to protect clothing that has a short shelf life. In addition, there is no guarantee that courts will even be able to punish pirates. It is also very possible that the laws enacted in the US would be much stronger than those in the European Union, which could lead to monopolies that would stifle creativity. Although Hedrick is opposed to these laws, she does make some suggestions on how to improve fashion copyright dealings if these laws go through. Overall though, her basic argument is that effective protection by Congress for fashion design is impossible. So, no protection is better than minimal protection. Any benefits that might arise from design protection would diminish rapidly with the cost and time of court decisions on piracy.
This source is obviously beneficial to my argument since it supports my thesis. However, the importance of this source is due to the rational and legal method used by the author to argue against fashion copyright. The author basically looks at the problems with the fashion industry at present and then shows the correlating proposed laws. However, she then analyses these legal proposals to show that they are extremely ineffective at solving the issues surrounding the fashion industry. If anything, these "solutions" might actually make things worse. The argument basically concludes that the fashion industry is inherently incapable of useful intellectual property protection. Therefore, time and energy should not be wasted on implementing laws that will most likely not benefit the industry.
Picker, Randal C. "Of Pirates and Puffy Shirts: A Comment on the Piracy Paradox: Innovation and Intellectual Property in Fashion Design." Virginia Law Review, Forthcoming; University of Chicago Law & Economics, Olin Working Paper No. 328. http://ssrn.com/abstract=959727
This article takes the side of those individuals supporting the enactment of fashion copyright. This argument is made using past attempts at employing fashion copyright laws to protect designs and the results of these attempts. One major example used to support this claim of positive effects resulting from design protection is the Fashion Originators' Guild of America. This guild basically organized registration and monitoring for apparel with a threat of boycott of any retailer who sold knockoffs. The claim here is that this increased intellectual property protection resulted in greater innovation efforts. Although the Federal Trade Commission took down this organization, the article argues that the fact that it formed demonstrates that high end designers do want greater protection. This argument is made against other claims that the members of the industry do not even want increased protection. The argument then continues into the present time and the benefits these laws would endow on the fashion industry. With fashion design protection, high end designers can make credible promises to their consumers, which is impossible with the current amount of knockoffs in the market. With the ability to make credible commitments, high end designers could raise their prices and make more money off their original designs. Therefore, there is clearly a benefit to high end designers that accompanies increased protection. Also, the author argues that imitation in the industry is only one sided with the high end designers having to deal with the rapid imitation of their original designs. With copyright, these designers could promise their consumers that this rapid copying of the apparel they are buying would not occur. Basically, the author here argues that the rampant copying in the fashion industry is detrimental to the high end designers and their customers. Therefore, copyright protection is necessary to protect their rights and keep low end designers from exploiting the low protection regime of the fashion industry.
Although this source complicates my thesis by working against my claims that fashion copyright laws should not be enacted, sources like these are absolutely necessary to develop a strong paper. These claims will provide something for me to argue against and prove incorrect in my argument. Without addressing opposing opinions, the argument and paper would be weak. This article clearly utilizes an analysis of the high end or elite designers to support the claim for increased fashion design protection. However, it avoids looking at the effect of copyright laws on the rest of the fashion industry. However, it is still a useful source as it provides the perspective of a high end designer, the biggest victim of piracy or imitation.