The New York Post this morning ran a short article (there are only short articles in the Post) entitled "Stefani has 'No Doubt' on Forever suit." A longer article is here on E!Online. The stories discuss an infringement suit brought by singer/designer Gwen Stefani against Forever 21 over alleged copying of her "Harajuku Lovers" clothing line, a line that features a checkerboard pattern of alternating hearts and squares, with Japanese lettering and the words "Harajuku" and "Love." The lines appears to be marketed to those who have only recently outgrown the Hello Kitty franchise. (For those who think this last remark "catty," see this link).
The Post article also refers to recent efforts to enact design design protection (no typo there: I mean protection for fashion designs under the design protection regime in 17 USC chapter 13). The Post notes that current copyright law already protects original fabric designs, and this is the basis on which Ms. Stefani's company is reported to be proceeding. There have been countless other (and successful) suits over fabric designs, including of wedding dresses. There have been successful suits over belt buckles, and a famous Second Circuit opinion by Judge Leval on eyeglass designs. What need is there then for even more protection? None that I can see. The fashion industry has been knocking on the same door for over 70 years and it is well past the time, as in Kafka's story, "Before the Law," to close the door and for the supplicant to die, ignominiously.
The initiative referred to by the Post began on April 25, 2007, when Congressman Delahunt introduced (with Mr. Goodlatte, Mrs. Maloney and Mrs. Bono as co-sponsors) H.R. 2033, the "Design Piracy Prohibition Act." The bill seeks to amend chapter 13 of title 17, which currently protects vessel hull designs. Section 1301(a) currently reads:
(a) Designs protected. - (1) In general. - The designer or other owner of an original design of a useful article which makes the article attractive or distinctive in appearance to the purchasing or using public may secure the protection provided by this chapter upon complying with and subject to this chapter.
H.R. 2033 would extend this to fashion designs, defined as "the appearance as a whole of an article of apparel, including its ornamentation." "Apparel" is in turn defined as articles of men's, women's, and children's clothing, including underwear, outerwear, gloves, footwear, headgear, handbags, purses, tote bags, belts, and eyeglass frames. Do we really need or want a new federal statute that protects the overall appearance of children's underwear?
The use of the term "piracy" in the title of the bill is designed to create its own justification for the bill: pirates bad, creators good; piracy occurs, therefore we need more and more laws (in the case of H.R. 2033, including a very detailed provision on secondary liability). But true pirates will almost always violate trademark laws, and as pointed out above, copyright law has proved quite flexible enough to protect truly original designs. I don't condone piracy of fashion designs, but I object to insatiable efforts to obtain broad and unnecessary protection:
What do you still want to know, then?” asks the gatekeeper. “You are insatiable.” “Everyone strives after the law,” says the man, “so how is that in these many years no one except me has requested entry?” The gatekeeper sees that the man is already dying and, in order to reach his diminishing sense of hearing, he shouts at him, “Here no one else can gain entry, since this entrance was assigned only to you. I’m going now to close it.”