There was a hearing yesterday in the U.S. Congress, in the House IP Subcommittee on H.R. 2033, the "Design Piracy Prohibition Act." The title of the hearing was "Are Special Provisions Needed to Protect Unique Industries?" The title reminded me of looking at the absolute worst efforts by first year law students to draft questions for certiorari, something like: "Does it violate Due Process for an evil serial killer of innocent children to die for his sins?" (It should be noted that the subcommittee chair is not a sponsor of the legislation). One may see the list of witnesses and read their prepared statements here. Women's Wear Daily has an article about the hearing, here. The article has a particularly depressing tidbit: the Council of Fashion Designers of America, a strong proponent of the bill, is trying to broker a deal with the American Apparel and Footwear Association, and others in the industry. A sponsor of the legislation, Congressman Delahunt of Massachusetts, referred to this obliquely in his testimony, remarking, "I am aware that there have been fruitful negotiations with those who want to improve the bill, and I would hope, Mr. Chairman, that we can soon sit down to connect the ideas that have been proffered." The phrase "those who want to improve the bill" is code language in Washington for "those who vehemently oppose the bill, but who are scared s*less that if they don't try and eliminate the worst features, the bill will pass as is over their dead bodies."
It is also noteworthy that the conjuring up of folk devils up to support the bill has been ratcheted up to levels that might make even the late (and great) Jack Valenti wince, and it is the mainstream media that is doing the dirty work. Mr. Delahunt's prepared statement quoted the following passage from an op-ed piece published in the NY Times by Newsweek contributor Dana Thomas:
Most people think that buying an imitation handbag or wallet is harmless, a victimless crime. But the counterfeiting rackets are run by crime syndicates that also deal in narcotics, weapons, child prostitution, human trafficking and terrorism. Ronald K. Noble, the secretary general of Interpol, told the House of Representatives Committee on International Relations that profits from the sale of counterfeit goods have gone to groups associated with Hezbollah, the Shiite terrorist group, paramilitary organizations in Northern Ireland and FARC, the Revolutionary Armed Forces of Colombia.
There are some notable omissions from this list, like Hamas, Al Qaeda, the Shining Path, and the Tamil Tigers. It is heartening to know that some terrorists draw the line at copying Western fashions. Perhaps there is hope that they, like Anakin Skywalker, can be turned from the Dark Side. It is less clear whether our legal system can be. H.R. 2033 is not limited to attacking groups associated with terrorists (note Mr. Noble's statement's Bush-like inference that Hezbollah et al are implicated in counterfeiting because "groups associated with" them are allegedly counterfeiting); it is not even limited to knock-offs. Instead, as Steve Maiman, co-owner of Stony Apparel testified in opposition to the bill, "We're in this business to make cute garments at a fair price for the average American, not to sit in depositions in copyright lawsuits arguing with lawyers over who invented an original style ... of a kid's top for $14.99 retail before it goes on sale." Tracing rights in fabric design is extraordinarily difficult, and I have tried in private practice to do so. And the bill (which is not part of the Copyright Act, but would rather be placed in chapter 13 of title 17) also includes a provision on secondary liability, sweeping in even more people as potential defendants. This is why there are references to those who seek to "improve the bill": the bill is so draconian, so unnecessary, and the consequences so devastating to those 99% of Americans who do not spend tens of thousands of dollars on a single piece of clothing, that one doesn't know whether to hide in a bunker or try and eliminate the the worst features of a bill that has only bad features.
All I want, and I think most people want, is to be able to go to Target to get reasonably priced, safe clothes for our kids without having to worry about supporting child prostitution rings and terrorists. I don't think we are, and it is a sad day when a bill to benefit the tiniest fraction of an industry will be used to destroy the rest of it. If there is a ray of hope in this debacle, it comes from "me-too-itis": also testifying was the Alliance of Automobile Manufacturers, who once again testified that they too should get design protection for automobile parts. (In my 13 years in Washington, I lost count of the times I saw bumpers and other large parts hauled out at a Congressional hearing in support of this effort). To the Alliance's great credit, at least in their prepared statement, they did not play the safety card: knock-offs are unsafe and should be banned on that basis, even though there is far more empirical support for that claim than for the too-clever ones quoted above by Mr. Noble about counterfeiting. Testifying against the parts proposal was the Consumer Federation of America and other groups.
It is also noteworthy that the conjuring up of folk devils up to support the bill has been ratcheted up to levels that might make even the late (and great) Jack Valenti wince, and it is the mainstream media that is doing the dirty work. Mr. Delahunt's prepared statement quoted the following passage from an op-ed piece published in the NY Times by Newsweek contributor Dana Thomas:
Most people think that buying an imitation handbag or wallet is harmless, a victimless crime. But the counterfeiting rackets are run by crime syndicates that also deal in narcotics, weapons, child prostitution, human trafficking and terrorism. Ronald K. Noble, the secretary general of Interpol, told the House of Representatives Committee on International Relations that profits from the sale of counterfeit goods have gone to groups associated with Hezbollah, the Shiite terrorist group, paramilitary organizations in Northern Ireland and FARC, the Revolutionary Armed Forces of Colombia.
There are some notable omissions from this list, like Hamas, Al Qaeda, the Shining Path, and the Tamil Tigers. It is heartening to know that some terrorists draw the line at copying Western fashions. Perhaps there is hope that they, like Anakin Skywalker, can be turned from the Dark Side. It is less clear whether our legal system can be. H.R. 2033 is not limited to attacking groups associated with terrorists (note Mr. Noble's statement's Bush-like inference that Hezbollah et al are implicated in counterfeiting because "groups associated with" them are allegedly counterfeiting); it is not even limited to knock-offs. Instead, as Steve Maiman, co-owner of Stony Apparel testified in opposition to the bill, "We're in this business to make cute garments at a fair price for the average American, not to sit in depositions in copyright lawsuits arguing with lawyers over who invented an original style ... of a kid's top for $14.99 retail before it goes on sale." Tracing rights in fabric design is extraordinarily difficult, and I have tried in private practice to do so. And the bill (which is not part of the Copyright Act, but would rather be placed in chapter 13 of title 17) also includes a provision on secondary liability, sweeping in even more people as potential defendants. This is why there are references to those who seek to "improve the bill": the bill is so draconian, so unnecessary, and the consequences so devastating to those 99% of Americans who do not spend tens of thousands of dollars on a single piece of clothing, that one doesn't know whether to hide in a bunker or try and eliminate the the worst features of a bill that has only bad features.
All I want, and I think most people want, is to be able to go to Target to get reasonably priced, safe clothes for our kids without having to worry about supporting child prostitution rings and terrorists. I don't think we are, and it is a sad day when a bill to benefit the tiniest fraction of an industry will be used to destroy the rest of it. If there is a ray of hope in this debacle, it comes from "me-too-itis": also testifying was the Alliance of Automobile Manufacturers, who once again testified that they too should get design protection for automobile parts. (In my 13 years in Washington, I lost count of the times I saw bumpers and other large parts hauled out at a Congressional hearing in support of this effort). To the Alliance's great credit, at least in their prepared statement, they did not play the safety card: knock-offs are unsafe and should be banned on that basis, even though there is far more empirical support for that claim than for the too-clever ones quoted above by Mr. Noble about counterfeiting. Testifying against the parts proposal was the Consumer Federation of America and other groups.
5 comments:
thats good to know
Sigh, I had started to write a letter to my congressman about this last week, but set it aside to work on again this weekend before sending it.
Am I too late?
Because I think the bill is one of the most blatant money-grabs I've seen in a long time and I don't think it should be passed.
The most offensive thing about it is the very idea that any clothing design might be "original" in any ordinary sense. Consider Carolyn Kennedy's wedding dress, a widely cited example of a design that was knocked off. It is a bias cut slip dress with a small cowl detail at the neckline. There was nothing new about it other than that she wore it for her wedding in an era where most brides wore huge dresses with wide skirts.
Give me a break!
Anon, write away, please!
As a fashion designer (and lawyer), I must respectfully dissent. I for one support the legislation as a step in the right direction, but think it really does need to be targeted toward those designers who are truly being innovative and creating designs and works that are entirely unique. I can say from experience that the time and effort that goes into such a design process is just as significant as those authors writing a song or a poem, for example. Innovative clothing designs are truly works of art (and, in support, are often shown in museums). The owners of such works should be treated equally under the law. I wish I could upload a file to this blog to give you a visual example of what I would consider innovative. Some of JPG's most recent couture pieces are perfect examples.
From the first anon to the second anon:
Well, as another person trained in fashion, and more importantly in this debate fasion history (including over a decade of museum experience relating to the history of fashion) I can only say that I strongly disagree with you.
Of course fashion is creative, and of course a great deal of ability is needed to create a good design. But the fact that clothing is sometimes displayed in museums does not prove that it is "a work of art," most fashion is displayed as industrial design or as cultural history.
But more to the point, since you are trained in fashion, exactly what aspects of a garment would you look at to decide whether a garment is a copy or not? Back to the Kennedy gown again, there is photo that ran in the Washington Post of a "knock off" of the dress. Take a look at it, and then compare it to Ms. Kennedy's wedding picture. The straps are completely different. The neckline on the so-called knock off is higher. And the skirt appears to be pieced differently.
If that is a copy that you think should be illegal, then you think that that no one else should have been able to make a white slip dress in 1996, 1997, and 1998?! Nothwithstanding the fact that slip dresses had been in common usage for evening and cocktail wear for years when the Kennedy dress was made! What if the dress were tea length instead of waltz length? Not a copy? But then what would happen if a short woman bought the dress, would it suddenly be an illegal copy?
Why don't you post a link to a fashion design that you think is "entirely unique" and that (1) would not be adequately protected by existing IP laws and (2) the supporters of this bill think need protection from copying?
Meanwhile, I'm working on my letter.
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