Copyright Protection Still a Possibility for the Fashion Industry

July 20, 2011 at 12:21 pm · Filed under copyright, Fashion

Kate Middleton's dress, on the right, is strikingly similar to the one worn by another royal, Isabella Orsini, two years earlier.

I suspect you didn’t happen to see the House Judiciary Committee Hearing on Friday about granting copyright protection to the fashion industry (check out my TED talk about why this is a terrible idea.) There was very little publicity about it, and even though the terribly cute and much-beloved Lazaro Hernandez testified, I didn’t see any significant coverage emerge in the trades (or more importantly) on Twitter.

But you may have seen this little piece in the New York Times about it, which got me roaring with laughter. In it, reporter Eric Wilson mentions that Steven Kolb, the executive director of the Council for Fashion Designers of America, the key sponsor of this bill, said that Kate Middleton’s wedding dress would be a good example of the type of “original” design that would be protected if this bill were to pass. In this version of the bill, designers could sue other designers who make “substantially identical” designs to their own.

Ironically enough, Sarah Burton, the designer of Kate Middleton’s dress, could very well have been sued when several outlets revealed her dress’ striking similarity to the one worn for another royal wedding two years before.

We’d all like to think that we can recognize newness and originality when we see it, but it’s actually quite hard to do. Even Steven Kolb, who is completely immersed in the fashion world, had trouble choosing a good example of a dress that is different from all designs that have preceded it. During the hearing, I was pleased when Representative Watt asked the Harvard Law professor who was defending this bill what the jury instructions would be if this bill became law. He asked how one would explain to 12 people who probably “don’t know a damn thing” about the fashion business what the difference is between a design that is “inspired by” another design and one that is “substantially identical?”

There were several deliciously ironic moments during the hearing. Hernandez presented himself quite sympathetically, but he ultimately garbled his well-rehearsed message. After saying that innovation will “dry up” in the United States if this bill isn’t passed, he was asked why luxury apparel has increased in price rather than decreased in price over the last several years, despite his claim that copyists were hurting their business. Hernandez explained that high-end designers have been pushed to do more – they’ve had to become more experimental in order to make it harder for the copyists to copy them, and that’s why prices have increased. If you recall that the purpose of copyright protection is to increase the incentive to innovate, then it seems that this kind of protection is simply not necessary in fashion, where the competition to create exciting new designs is spurred on by the lack of protection.

Litigation, of course, can be a terrible deterrent to innovation, and that’s the message that I hope the committee heard. Here’s hoping they also noticed that there was no evidence presented that copyists and the knock-off industries have financially harmed the fashion industry in the U.S. And that, if this bill passes, a lot of mischief may ensue, from copyright trolls who will raise the cost of doing business, and from banks less willing to give loans to young designers who can’t afford a team of lawyers to prove to the bank that their designs aren’t copies.

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