Wednesday, July 18, 2007

The Emperess Has No Clothes

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.”


Anonymous said...

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.

Susan Scafidi ( wouldn't like you much lol.

I deal a lot with this on my blog (for apparel entrepreneurs). In a recent entry (protecting fashion ideas law), I posted a poll asking how many supported the proposed new legislation. 88% of respondents were opposed, thinking it unnecessary. A second question I asked was, "Regardless of how you responded above, do you think this law will protect you?" 100% responded "No".

I just thought I'd let you know how most of us inside the apparel business feel about it. There's other laws, policies and legislation proposed on "our behalf" that we feel is either unwarranted, unnecessary or downright silly.

William Patry said...

Kathleen, I take my uncopyrighted hat off to you. Many thanks.

Unknown said...

Interesting, considering the fact that Stefani's own clothing line pretty shamelessly appropriates Japanese youth fashion.

Anonymous said...

The notion that fashion design is utilitatrian is as outmoded as the fashion industry trying to convince people that its work is art. But given that the copyright and other laws would protect building facades, ship hulls and sculptures posing as clothing, why should we fail to protect fashion design, however prosaic, in deference to its industry standard of outright, slavish and near instantaneous copying? Those practices certainly do not benefit the "authors" of the designs. They benefit mass merchandisers and their suppliers.

Of course, the fashion magazines enjoy full protection but who would want cross Meryl Streep in The Devil Wore Prada!

William Patry said...

Josh, I hated that movie.

Anonymous said...

"in deference to its industry standard of outright, slavish and near instantaneous copying"???

That's what fashion is ABOUT. This isn't the 1890's. Clothes that are fashionable are not expensive designer clothes. They are the clothes that all the teenagers are wearing & is mass-produced. That's why there is so much churn in what is fashionable.

And then you see the news stories in favor of this law that suggest there is something wrong with making a dress similar to one worn at the Oscars. Boat-hull like protection or not, I just don't see protection for a concept as simple as "strapless silver sequin evening gown." As it is I think copyright is being pushed too far in the fashion context. There are dang few really original designs.

The whole thing is completely crazy.

Anonymous said...

I thought I'd amend your entry with an update. I've posted an entry to my blog that explains how this legislation would affect apparel producers and consumers in far reaching and dramatic ways. The post is Fashion copyright: the death of us all.

It doesn't matter whether you care about fashion one iota (I don't either). This will affect everyone, I'm sure to the extent that it would be rescinded if passed but by then, the damage to apparel manufacturing infrastructure in the US would be beyond repair. We're limping along as it is.

William Patry said...

Thanks so much Kathleen. My interest in fashion is limited to limited edition sneakers. There, the industry seems to thrive on imitation and parody. For example the Bathing Ape "Bapestas," to me are directly derived from Nike's Air Force Ones (a/k/a "uptowns"). Yet, Bathing Ape's Nigo has created a different vibe with colors and other design elements. Many sneaks are derived from Vans slip ons and Converse Chuck Taylors. Yet, a thousand flowers are blooming and we are all much much better for it.

Anonymous said...

I think we need a law that will protect the truly artistic contributions embodied in a fashion design. The bottom line is, clothing may in general be functional, but there are certain artistic aspects of designers' garments that should be protected (it is those aspects that other designers copy and profit from, and it is those parts of garments that we admire in museums as art). For example, a lot of time and creative energy might be put into developing a really visually interesting and original sleeve. I do not understand in this case why the sleeve design should not be protected simply because it is incorporated in something a person might wear. The sleve design itself is not per se "useful". Seems rather unjust, irregardless of what might happen in the market. A law protecting fashion designs would at minimum give designers the option to sue for infringement if they chose to do so (ie, when it makes economic sense), just the same as any other artist who authored a truly creative work.

Anonymous said...

Great read im very interested what happens with forever 21 and Harajuku Lovers. I mean isnt this nation built off of people stealing , copying , using other peoples ideas anyways ?