WASHINGTON — The Council of Fashion Designers of America and the American Apparel & Footwear Association came to the halls of Congress on Friday trying to advance a bill known as the “Innovative Design Protection and Piracy Prevention Act” that would put more teeth into copyright protection for fashion creations, claiming design piracy and knockoffs are stifling innovation.
If enacted, the bill would cover “deliberate copies that are substantially identical to the protected designs” and would provide protection for three years. All designs created in the public domain prior to enactment of the bill would be exempt and protection extends automatically to designs, without having to register them. A “heightened pleading standard” in the measure requires a plaintiff in a lawsuit to prove the design is “protectable, substantially identical” and that the defendant had access to, or was aware of, the “protected design.”
Lazaro Hernandez, designer and a partner of Proenza Schouler, testified before the House Judiciary subcommittee on Intellectual Property, Competition and the Internet on behalf of the CFDA, outlining how his business has been damaged by copyists who are able to reproduce a runway design in a matter of a few days, before Proenza Schouler even receives its first order for the original design.
“The fashion industry is already a tough business and it is getting tougher because of piracy,” Hernandez told lawmakers.
He said it takes tens of thousands of dollars to start a business and even more to sustain it. Proenza Schouler produces four collections a year at a cost of about $3.8 million, Hernandez said. The typical cost of a fashion show runs about $320,000.
“Our designs are born in our imagination. We create something from nothing at all,” Hernandez said. “By far the majority of apparel is based on garments already in the public domain. Nothing about the proposed legislation will change that. Nobody will ever be able to claim ownership of the T-shirt or pencil skirt. This bill is intended to protect only those designs that are truly original.”
Hernandez told the committee that one of Proenza Schouler’s most popular designs — the PS1 satchel — has been knocked off repeatedly.
“We have attempted to assert our rights to fight this piracy, but without success because, unfortunately, it is currently legal under U.S. law to pirate a design…[even one] that is a key to our business,” Hernandez said.
Rep. Bob Goodlatte (R., Va.), chairman of the subcommittee, who introduced the legislation this week, asked Hernandez to address assertions of critics of the bill that nothing is truly original because all design is derivative.
“[Critics] believe that unfettered copying and access drives the fashion cycle and results in more creativity,” Goodlatte said.
In response, Hernandez said: “The problem is someone copying, stitch for stitch, what we have already created. There is a big difference between being inspired by something and copying something.”
He added that he believes copyright protection has “not caught up with technology” that allows knock-off artists to reproduce designs over the Internet quickly.
“There has been a disconnect there,” Hernandez said.
Rep. Mel Watt, (D., N.C.) asked proponents of the bill for a list of instructions that would be given to 12 jurors “that defines clearly the distinction between inspired by…and substantially identical.”
“The proof in a case is going to rely on 12 uneducated, unsophisticated design people making those kinds of distinctions,” Watt said. “Unless that can clearly be drawn, you are just going to have endless litigation and that is a concern I have.”
Kurt Courtney, manager of government relations for the AAFA, said the “substantially identical” standard is tight and a “very high threshold when compared against never-before-seen fashion articles.”
Courtney also dismissed the argument the bill would open the door to frivolous lawsuits — a position held by Christopher Sprigman, a University of Virginia School of Law professor who opposes the bill and who testified — saying the heightened pleading process places the burden squarely on the plaintiff to show that the design is original, the defendant’s design is “substantially identical” and proof that the defendant had some access to the design before infringing on it.
Jeannie Suk, a Harvard Law School professor who supports the bill, said it “rewards designers who produce original work with legal protection against copyists but limits frivolous litigation through heightened pleading requirements.”
“These collections continue to build on that vision, empowering differently abled adults to express themselves through fashion,” said @tommyhilfiger of his line of adaptive apparel, which launches today. The line consists of 37 men’s and 34 women’s styles based upon the pieces from the spring Tommy Hilfiger sportswear collection. #wwdnews
“Stranger Things” is getting a new cast member for season 2. Meet @sadiesink_, the 15-year-old who will be joining the Netflix series for its new season. You may recognize her from “The Glass Castle” with Brie Larson and Woody Harrelson, but the Texas native’s next role goes in an entirely different direction. She describes her character, Max, as “a rough and tumble skater girl [who] becomes friends with the boys at school.” The second season debuts on October 27. (📷: @jgreenery) #wwdeye
Amid the Harvey Weinstein controversy, there’s another sector that’s being put under the spotlight for sexual abuse: the modeling industry. While rumors about abuse and sexual harassment of female and male models — and the photographers, agents and others who perpetrated it — have circulated within the fashion world for years, model @cameronrussell started posting stories from models on Instagram last week about abusive situations they’ve encountered — from sexual harassment and molestation to attempted rape. Over 75 have weighed in so far. Read more on WWD.com. Link in bio. #wwdnews
To celebrate its 16th anniversary, @dylanscandybar tapped designers and celebrities to create mosaics out of candy. The mosaics will be auctioned off to support the philanthropic cause of each participant’s choice. Pictured here is the mural created by @aliceandolivia's Stacey Bendet. For a first look at some of the other artwork being unveiled tonight, go to WWD.com. #wwdeye
The annual Veuve Clicquot Polo Classic in Pacific Palisades this weekend drew Kate Hudson, Tracee Ellis Ross, Laura Dern and more. See pictures of the star-studded event on WWD.com. (📷: @chelsealaurenla) #wwdeye
In his new book “Hollywood Royale,” Andy Warhol’s Protégé Matthew Rolston celebrates the Eighties revival of Hollywood glamour. Featuring more than 100 portraits taken by Rolston from 1977 to 1993, the book contains photos of icons like Michael Jackson, Cyndi Lauper, and @drewbarrymore, pictured here in 1991. “Hollywood Royale,” out today, will be accompanied by an exhibition opening at Los Angeles’ Fahey/Klein Gallery on March 1. #wwdeye
"Nowadays when life is not so happy with everything going on in the world, I think people come to me for a little bit of whimsy and color and fun." - Designer Rebecca De Ravenel on her cult-favorite jewelry line. (📸 : @vsteves) #wwd40
“Everyone is talking about how the retail industry is struggling, but I think it’s an incredible time because brands who are doing something different and innovative are setting themselves up for the future,” said @adamgoldston, who founded the luxury athletic brand @apl with his brother @ryangoldsten. The Goldston’s are part of WWD’s 40 under 40: a group of industry notables. See the rest of the list on WWD.com. (📷: @vsteves) #wwd40
@eyeswoon blogger Athena Calderone debuted her first-ever cookbook, “Cook Beautiful,” which is heavily centered on the presentation and visual expression of food. Pictured here are her miso glazed carrots from the book. Get the recipe on WWD.com. (📷: @johnny_miller_) #wwdeye