By: Lauren Ciancia

Until recent months, the fashion industry was unique from its artistic counterparts in that intellectual property protection was afforded only to counterfeit goods, namely “any [good] that infringe[s] on a registered trademark or falsely purport[s] to be authentic.”ⁱ This may bring to mind the image of a street stand table strewn with imposter Louis Vuitton and Chanel bags offered at a dramatically reduced price from the authentic originals. These narrowly construed protections may be expanding, however, with the introduction of the Design Piracy Prohibition Act (hereinafter “DPPA”) to the Senate on August 2, 2007. The bill was presented by Senator Charles Schumer and its ultimate purpose is to “protect original fashion designs for a period of three years from their registration with the U.S. Copyright Office.”ⁱⁱ While the bill is still pending before the Senate, if it is favorably received, this could result in significant changes in the American fashion industry. As a result, there is a sharp divide among legal scholars and representative members of the fashion community as to the potential benefits of the DPPA. Its proponents include New York’s Council of Fashion Designers of America and well-regarded legal scholars, like Professor Susan Scafidi of Fordham Law. Conversely, its critics include the Los Angeles-based California Fashion Association and Professors Kal Raustiala of UCLA Law and Christopher Sprigman of UVA Law. While there are certainly merits in both positions, I think the DPPA’s proposal in its current form will ultimately infringe upon a designer’s inherent right to freedom of expression under the First Amendment of the United States Constitution.

Proponents of the DPPA point to a number of significant factors to indicate its strengths. As Professor Scafidi indicates in her discussion of the fashion-forward New York-based Ananas handbag line, the DPPA commendably affords IP protection to young up-and-coming designers who are not as well-established as fashion icons like Chanel or Tod’s (to whom copyright protection is afforded in the context of counterfeits).ⁱⁱⁱ Without the DPPA, equally talented but less established designers like Ananas, remain vulnerable to copies not of their label, but of their design. This may manifest itself in a number of ways- for a handbag designer it may be the use of vibrant and unexpected jewel tone colors or the richness of a lambskin exterior. For a clothing designer, the unique design ideas are countless- the billowing kimono sleeve on a blouse, the taffeta empire waist on a cocktail dress, the rich cashmere-alpaca blend in a boyfriend sweater to name a few. Without passage of the DPPA, young designers are potentially threatened by knockoff designers who can turn out desirable imitations of reduced quality at a reduced price. As a result, the mass market may be drawn to these inexpensive alternatives, the product of those who have reaped but have not sown.

Alternatively, critics of the DPPA dwell not on the vulnerabilities of young designers but look more broadly to the vulnerabilities of the fashion industry as a whole if a bill such as the DPPA is enacted. Professors Raustiala and Sprigman make several compelling arguments against the DPPA’s ultimate passage. For one, they point out that fashion is driven from styles and looks of the past thus it would be counterproductive to limit these forms of “copying.”^iv For instance, take the “little black dress” envisioned by Coco Chanel in 1926 and imitated by thousands of designers after its grand debut on Audrey Hepburn in Breakfast at Tiffany’s. If the DPPA was enacted at this time, knockoff designers of the Chanel original may have experienced great difficulty producing their own versions of the little black dress, ultimately preventing the mass markets from experiencing a taste of sophistication like Ms. Hepburn. Additionally, if the DPPA was enacted, the fashion industry may have endured serious financial losses considering the tremendous source of revenue in the little black dress by designers across the world.

Proponents of the DPPA, like Professor Scafidi, argue that the mass market is not prevented from participating in new trends as a number of top-flight designers like Isaac Mizrahi, Proenza Schouler, Vera Wang, and Roberto Cavalli team up with the likes of Target, Kohl’s, and H&M to offer affordable lines that resemble their high-end collections.^v Although this trend appears poised for continued expansion, I do not think it provides a strong basis for the implementation of the DPPA considering the potential exclusion of what may be deemed unique forms of creative expression. Further, if the DPPA was enacted in conformity with the recent development of high-end designers offering inexpensive clothing lines, it appears as though these highly successful designers would obtain a monopolistic position, cornering both the couture and mass marketed segments of the fashion industry.

Conversely, Professors Raustiala and Sprigman offer an interesting discussion of the legal basis for copyright law. They articulate,

copyright law makes unlawful any use of a copyrighted work that results in a new work that is ‘substantially similar’ to the old. And the standard for substantial similarity is quite low- over many years, in a large number of cases, federal courts have found copyright infringement…where no one would mistake the second work for the first.^vi

As a result, if copyright protection was afforded to fashion designs, the DPPA would ultimately impede creative expression and prevent the promulgation of designs that are not only copies of earlier fashions, but further, may prevent the dissemination of design ideas that are completely original but merely resemble or were influenced by prior ideas. Further, the fashion industry is a $350 billion dollar business that although certainly demonstrating its weaknesses, namely in the context of what may be conceived as the exploitation of young designers, has proved wildly successful both in its utilitarian and artistic capacities.^vii So, why fix what’s not broken?

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ⁱ Council of Fashion Designers of America, CFDA Applauds Introduction of Design Piracy Prohibition Act to U.S. Senate, Aug. 8, 2007, www.cfda.com/index.php?option=com_cfda_content&task=news_display_all.
ⁱⁱ Id.
ⁱⁱⁱ Susan Scafidi, Written Statement on H.R. 5055, “The Design Piracy Prohibition Act” presented to the Subcommittee on Courts, the Internet, and Intellectual Property, U.S. House of Representatives (July 27, 2006).
^iv Kal Raustiala and Christopher Sprigman, How Copyright Law Could Kill the Fashion Industry, THE NEW REPUBLIC, Aug. 14, 2007, www.law.ucla.edu/home/News/Detail.aspx?recordid=1188.
^v Susan Scafidi, Written Statement on H.R. 5055, “The Design Piracy Prohibition Act” presented to the Subcommittee on Courts, the Internet, and Intellectual Property, U.S. House of Representatives (July 27, 2006).
^vi Kal Raustiala and Christopher Sprigman, How Copyright Law Could Kill the Fashion Industry, THE NEW REPUBLIC, Aug. 14, 2007, www.law.ucla.edu/home/News/Detail.aspx?recordid=1188.
^vii Id.