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House Reintroduces Design Piracy Bill

The new bill would provide three years of copyright protection.

WASHINGTON — A bipartisan group of House lawmakers reintroduced a modified version of a bill on Thursday that would provide three years of copyright protection for fashion designs.

This story first appeared in the May 1, 2009 issue of WWD.  Subscribe Today.

The bill has been championed by the Council of Fashion Designers of America, but it is opposed by the American Apparel & Footwear Association and some apparel companies.

The Design Piracy Prohibition Act, introduced by Reps. Bill Delahunt (D., Mass.), Bob Goodlatte (R., Va.) and Jerrold Nadler (D., N.Y.), would amend current law to allow companies and designers to register their fashion designs for three years of copyright protection. Apparel, handbags, footwear, belts and eyeglass frames would be covered. The measure would also establish penalties for companies knocking off designs.

“We believe the [bill] addresses the very real problem of fashion piracy,” said Steven Kolb, executive director of the CFDA. “Pirates steal American fashion designs, make low-quality copies in Asian factories with cheap labor and import them back into the U.S. to compete with the original designs.”

Kolb said the legislation is “badly needed” to give designers some protection and act as a deterrent against companies that knock off their designs.

But Kevin Burke, president and chief executive officer of the AAFA, said: “We’re not opposed to protecting products, but it’s the process here we are opposed to. The process is cumbersome. The essential driver of fashion is inspiration. This bill outlaws inspiration. Everything a designer comes up with will have to be looked at by legal offices in companies to see whether or not it passes muster.”

Burke, who sent an opposition letter to lawmakers earlier this week, said the bill would “create legal ambiguity” by utilizing the standard for infringement of “closely and substantially similar.” He said the bill would open the floodgates to frivolous lawsuits, stifle creativity and innovation and impose costly new burdens on companies trying to verify whether a design they might want to use had been approved for copyright protection.

The bill faces an uphill battle in Congress because of industry opposition and the fact that fashion is an industry quick to jump on trends and find inspiration from styles of the past.

The new bill differs from last year’s measure, which stalled in Congress. Among the changes are: a new standard for infringement, defined as “closely and substantially similar”; new language that would make it clear reproducing a trend does not infringe on the protection granted in the bill; a provision that exonerates designers who independently create a design that meets the standard of infringement but does so “without any knowledge of the protected design”; a searchable database maintained by the U.S. Copyright Office of all designs filed, and penalties for false representation of $5,000, which cannot exceed $10,000.