Ever drooled over something you couldn’t afford at Neiman Marcus, then walked into another cheaper store (cough, Forever 21, cough) and saw basically the exact same thing (except, perhaps, made out of highly flammable material) at a fraction of the price? I know I have (and maybe squealed for joy at my discovery). While the fashionista in me was doing a little dance, the lawyer in me was thinking, “This looks like some blatant copyright infringement to me!”
Forever 21 is at the top of the fast fashion game — not least when it comes to “borrowing” from high-end brands. As a result, it is constantly being sued for copyright infringement (here, here, here, here, and, oh yeah, here). In total, over 50 designers have sued Forever 21. However, it has never been found liable for copyright infringement (leading to a wee bit of bitterness). Why is that?
Forever 21 settles most of these lawsuits out of court, but it is also incredibly successful at trial. Its success is partly due to the higher standard of creativity required to qualify for copyright protection for fashion items, which courts consider “useful articles,” defined in legalese as “an object that has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information” and defined in English as something that is freaking useful. Courts use a higher standard to prevent stifling innovation in the industry — after all, there’s only so many ways you can vary a plaid pattern and a shirt still has to have holes for your arms and head. Indeed, Express just lost its case against Forever 21 — and had to pay Forever 21’s $700,000 in legal fees (ouch) — because it couldn’t prove that its plaid designs were original enough to be protected. If Express had won, where would courts draw the line? Next could be polka dots, stripes, etc. Imagine a world where one brand has copyright protection over every incarnation of polka dots. (Not a world I could bear to live in, as items like this and this would be prohibitively expensive to buy.)
Responding to outcry from the fashion world, Sen. Chuck Schumer (D-NY) introduced The Innovative Design Protection and Piracy Prevention Act (IDPPPA). The bill just got through the Senate Judiciary Committee and will make its way to Congress later this year, with the support of the Council of Fashion Designers of America (representing the creative side of the fashion industry) and the American Apparel and Footwear Association (representing about 75% of industry manufacturers and suppliers).
The IDPPPA would extend three years of copyright protection to virtually all items of fashion (bags, belts, sunglasses, clothing, etc.) from the moment they are first displayed publicly (for example, at a runway show, as opposed to when those items first hit shelves). It also uses trademark law’s infringement standard of “substantially identical” (compared to the current copyright standard of “substantial similarity”). In other words, the designers must show that the copy is so substantially identical to their original that the two are likely to be mistaken. Furthermore, the designers must prove that their item is unique enough to be distinguishable from prior designs. Color, patterns, or graphics cannot be factors in determining whether the item is unique. The variations in design also must be non-trivial and non-utilitarian.
So what does that mean in English? Basically, if I design a shirt with 2-foot shoulder pads (which you know is going to be in style at some point…if it isn’t already), I could qualify for copyright protection. The cut is original, the shoulder pads do not have a utilitarian purpose (compared to pants that must have holes for your legs), and the design is also distinguishable from prior designs of people who only put in 5-inch should pads (i.e., every outfit I wore in the 80s). If your uncreative self decides to design a shirt with 1.95-foot shoulder pads, I could sue you for copyright infringement and have a better chance at winning than with the current laws.
Opponents of the IDPPPA believe it will kill creativity and actually hurt sales. They argue that the fashion industry does well without strong copyright protection as copying forces designs and concepts to the consumer faster. It also requires designers to be more innovative and as a result, increases sales and creates demand for newer, more original designs as the old items become ubiquitous. Furthermore, copying drives the market up and increases the value of top designers. As copies of the “it” bag hit cheaper shops, more people want to buy the original and it becomes a popular item. At the same time, the people who bought the “it” bag first become so disgusted that the filthy, unwashed masses are crimping their style that they shell out another $5,000 for the next “it” bag just to stay ahead of the curve. (Sound implausible? Not to Hermes, which reportedly invented a bogus wait list for its notorious Birkin bag to promote that all-important aura of exclusivity.) Opponents also argue that the current, more lenient, copyright laws do not cause any real financial harm because customers shopping at Forever 21 or H&M can’t afford to buy the originals in the first place.
Whichever side you of the runway you sit on this issue, one thing is certain;: if the IDPPPA passes, it is going to be one of the biggest changes in fashion since hammer pants went out of style. Speaking of hammer pants, field trip to Forever 21 anyone?