From WWD Issue 07/15/2011
A contingent of Seventh Avenue designers and apparel executives is heading to Capitol Hill today to try to advance legislation that would afford them some protection from knockoffs for the first time in history.
Lazaro Hernandez, designer and a partner of Proenza Schouler, will carry the flag for fashion designers and the Council of Fashion Designers of America, as he testifies in support of a bill known as the Innovative Design Protection and Piracy Prevention Act, which would extend copyright protection to “unique and original” designs for a period of three years.
Kurt Courtney, manager of government relations for the American Apparel & Footwear Association, will testify on behalf of apparel brands, in support of the bill introduced late Wednesday by Rep. Bob Goodlatte (R., Va.), chair of the House Judiciary subcommittee on Intellectual Property, Competition and the Internet, which is holding today’s hearing. The witness list also includes Jeannie Suk, a Harvard Law School professor, and Christopher Sprigman, a University of Virginia School of Law professor who opposes the legislation.
The legislation represents a compromise between the AAFA and CFDA in conjunction with Sen. Charles Schumer (D., N.Y.), who co-sponsored and led the introduction of the bill last year. The bipartisan measure stalled after it was passed by the Senate Judiciary Committee at that time. In a new session of Congress, the legislation will have to be introduced and passed by the House and Senate, and be signed by the President to become law.
If enacted, the bill would cover only “deliberate copies that are substantially identical to the protected designs.” All designs created in the public domain prior to enactment of the bill would be exempt and protection extends automatically to designs without registration. A “heightened pleading standard” 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.”
Steven Kolb, executive director of the CFDA, said he will be at the hearing today, accompanied by two other Proenza Schouler executives, Jack McCollough, designer and partner, and Shirley Cook, the company’s chief executive officer and partner.
“I think this legislation is as important now as it was when we started [about five years ago] and maybe even more so,” Kolb said. “Because we see the vulnerability of designers, particularly young designers and small business owners and the consequences of their ideas, intellectual property and creativity being taken from them and how it impacts their ability to manufacture their collections and grow their businesses.”
Kevin Burke, president and ceo of the AAFA, said the “heightened pleading requirement” in the legislation allowed the organization to support the bill.
“This provides additional protection to our members from what they all fear most and that is frivolous lawsuits,” said Burke.
Kolb said designers continue to lose tens of thousands of dollars to knock-off 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, which protect ornamental designs, and trademarks, which protect brand names and logos, do not cover apparel design.