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Design Piracy Bill Reintroduced in Congress

Sen. Charles Schumer on Monday presented a modified version of legislation that would put more teeth into copyright protection for fashion creations.

Jack McCollough, Shirley Cook and Lazaro Hernandez.

WASHINGTON — The fashion industry might have another life left on copyright protection in Congress.

Sen. Charles Schumer (D., N.Y.) on Monday reintroduced a modified version of legislation that would put more teeth into copyright protection for fashion creations after a long lull that left the bill in the House stalled.

The proliferation of fashion design piracy has haunted the industry for decades, but finding definitions for terms such as “piracy,” “knockoffs” and “original” designs has proven elusive. High-profile designers — including Proenza Schouler’s Jack McCollough and Lazaro Hernandez, Narciso Rodriguez, Diane von Furstenberg, Nicole Miller and Jason Wu — have lobbied for the legislation, and many made the trek to Capitol Hill to persuade lawmakers to take a look at it and provide some help to thwart the knocking off of their designs.

While the bill has run into opposition through the legislative process, the two major fashion groups leading the effort — the American Apparel & Footwear Association and Council of Fashion Designers of America — forged a compromise in August 2010, clearing the path for its advancement. However, the legislation had been dormant for so long that the two groups shifted their priorities earlier this year and took a different tack on copyright protection, without giving up hope that lawmakers would someday advance the legislation.

Schumer’s action on Monday gave new momentum to the bill and has the industry groups redoubling their efforts to press Congress to pass it.

The bill would expand copyright laws for the first time to include fashion designs that are often the target of kno ckoff artists who replicate and profit off of another designer’s creation. It 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 would extend automatically to designs without registration. A “heightened pleading standard” three-step process 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.”

The last iteration of the bill was introduced by Rep. Bob Goodlatte (R., Va.) in July 2011 in the House and dubbed the Innovative Design Protection and Piracy Prevention Act. It could not be learned at press time whether the name was changed in the Senate bill.

The bill’s prospects are uncertain as Congress has a truncated schedule and is only expected to be in session this month before breaking for the November election. A possibility exists that the bill could be taken up if there is a lame-duck session after the election.

“Through this whole process, we found a way to protect both sides without stifling creativity, which is at the core of what designers do,” said Kevin Burke, president and chief executive officer of the AAFA, which opposed the original bill introduced nearly six years ago because it did not contain strong enough language to prevent frivolous lawsuits. “In this bill, [apparel companies] have a level of protection that not everyone can sue our industry for design piracy. It not only protects those who could be sued but it also allows us to use a legitimate three-step process against those who have stolen our designs in a fair and equitable manner. We have, frankly, tens of thousands of designers working in our industry who on occasion find their stuff has legitimately or illegitimately been copied. Now they have a legitimate way to fight this without creating the aura of frivolous lawsuits.”

Steven Kolb, ceo of the CFDA, said: “Coincidentally, it is fashion week. The time is now.”

Kolb reflected on the length of time it has taken to advance the bill in Congress, noting he has always viewed the process as a marathon as opposed to a sprint.

“It is an important moment in American fashion,” Kolb said. “The idea that fashion isn’t protected is unique to this country, when you look at the type of protection that exists elsewhere. It is a bill [whose] time has come and one that has been carefully adapted and worked through so that it’s good for every stakeholder and every piece of the industry.”

He also said it is fitting that Schumer has been such an instrumental part of the compromise legislation.

“Sen. Schumer is from New York City, a city that depends heavily on fashion…and very important to the economy of this state and this country,” Kolb said. “This bill is about the protection not only of designers, but also about creativity and the security of jobs.…It has a far-reaching impact.”

Kolb has said that designers continue to lose tens of thousands of dollars to knockoff artists who profit from their creations because the U.S. does not protect fashion designs under intellectual property laws. Copyright protection does not cover apparel, because articles of clothing are currently considered “useful articles” as opposed to works of art. Design patents that protect ornamental designs and trademarks that protect brand names and logos do not cover apparel design.

At the last hearing on the bill before a House Judiciary Subcommittee on Intellectual Property, Competition and the Internet in July 2011, Hernandez, designer and a partner of Proenza Schouler, testified on behalf of the CFDA and outlined how his business has been damaged by copycats who are able to reproduce a runway design in the 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.

Proenza Schouler produces four collections a year at a cost of about $3.8 million, Hernandez said at the time, while the typical cost of a fashion show runs about $320,000.