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Vendors, Designers Persist In Copyright Proposal Rift

A discussion on the value of copyright protection for fashion split along vendor and designer lines Thursday, highlighting the industry infighting that has...

LOS ANGELES — A discussion on the value of copyright protection for fashion split along vendor and designer lines Thursday, highlighting the industry infighting that has slowed federal legislation on the issue.

This story first appeared in the May 7, 2008 issue of WWD.  Subscribe Today.

On the vendor side, Ilsa Metchek, executive director of the California Fashion Association, argued that a proposed bill to shield original apparel, handbag, footwear, eyewear and belt concepts from copies would have a negative impact on business.

“It will expand into luggage; it will expand into home furnishings,” she said. “At what point do you say, ‘It hasn’t been done before?'”

On the designer side, Rami Kashou, runner-up on season four of Bravo’s “Project Runway,” suggested the pending Design Piracy Prohibition Act rewards the hard work that spawns fashion innovation. “I put…everything into my designs,” he said. “When an idea is invented or comes to life, and people associate a label with that idea, I would definitely hope there is some kind of protection.”

The bill, which is stalled in Congress, would allow designers to register for three years of copyright protection and would penalize knockoff artists $250,000 or $5 for each copied item, whichever is more. The U.S. Chamber of Commerce estimated that $12 billion in revenues were lost in 2006 because of counterfeiting and piracy of apparel and fashion goods.

The legislation was introduced in the House and Senate last year. A proposal from the Council of Fashion Designers of America, the bill’s leading champion, to reach a compromise with the American Apparel & Footwear Association was rejected in March by the association’s board.

Joining the debate at the Luxe Hotel Sunset Boulevard were attorneys Anne-Marie Pecoraro, David Erikson and Robert Helfing, who delved into the legal questions surrounding fashion copyrights and placed U.S. laws in a global context. The lawyers and their firms have represented Magda Berliner, Libertine, Thierry Mugler, Frédéric Malle and Delia’s, among others.

Helfing focused on the legal measures that exist to encourage innovation in the fashion industry, including design patents and trademark laws, and pointed out why they might be insufficient.

“By the time your protection issues, the market has moved on,” he said. “If you really want to make a knockoff artist laugh, tell him to stop what he’s doing because you have a patent pending.”

But the attorneys acknowledged that the legislation was imperfect. For example, Erikson indicated that figuring out what designs merited copyright protection would be challenging, and stressed that copyrights should only be doled out to novel designs that have “not been done before” and are “not staples.”

He added that the legislation doesn’t inhibit designers from interpreting ideas to jump on a trend, only from making exact or very close copies of original work.

Metchek, however, said businesses already profit from creating recognizable brands, and criticized fashion copyrights for potentially resulting in frivolous lawsuits that could lead retailers to avoid vendors accused of copying.

Despite the bill’s potential problems, Kashou said, “Raising awareness is a good start. That’s how things get passed eventually.”

Conceding that Kashou and other designers might be hurt by the status quo, Metchek warned that the proposed “cure is worse than the disease.”