Thursday, August 12, 2010

New Legislation Could Impact Indie Fashion Designers On Etsy.

I’m not a lawyer. This is just my interpretation of the Innovative Design Protection and Piracy Prevention Act.

Only a few days ago Senator Charles Schumer (D-NY) introduced the Innovative Design Protection and Piracy Prevention Act (S. 3728). What follows is a brief, clear and simple interpretation of that legislation and how it could affect indie fashion designers for better or worse – and there is a worse.

Let’s be up front and honest, most of us aren’t as interested in politics as we should be. How many times have you flipped right past C-SPAN to get to Two And A Half Men without even considering what those old fogies in gray suits are debating? Don’t be too embarrassed; I do it too.

This handy little piece of proposed legislation is being sold as a way to offer intellectual property protection to unique and original fashion designs. Or more simply put, it means no copycatting or ‘borrowing’ other designers’ clever and crafty ideas unless you can combine them with enough of your own ideas and style to make a completely new and unique product. As it stands the U.S. is the only industrialized nation that is completely devoid of laws prohibiting the piracy of clothing. That pretty much means you can watch the Oscars then go and replicate every single dress you see on the red carpet and start a business selling copycat dresses – which is exactly what the designers at Faviana do. This isn’t slander; just check out the Celebrity Red Carpet Dresses link on their site and you’ll see they make no effort to hide it. In fact, they scream it – Hey these dresses are exactly like the ones see on the red carpet! That is, for a fraction of the price of course. It’s not nice, but it is legal and it’s big business.

So Mr. Schumer’s new law will attempt to put a stop to this sort of blatant replication. Don’t be misled; you wont be able to sue a fellow Etsian because she made a blue pea coat with wood buttons that maybe looks a little like the one you made last year. A coat is much too common and useful an item to copyright. Can you imagine how awful it would be if only one design house were allowed to make pea coats? Now, if someone buys your pea coat and then takes it apart, traces each piece, and remakes the exact pea coat with all of your unique little tricks and details that make it special and unlike all other pea coats, then that, under Mr. Schumer’s Piracy Prevention Act would be illegal. Sound good so far?

However, there are some sneaky little loopholes that small, independent designers need to be aware of. Like most laws, bills, and acts, there’s lots of room for interpretation, and like most legislation this act has the potential to do as much harm as good.

Let’s look back on that blue pea coat with wood buttons you made last year. Let’s say it was moderately popular and a dozen or so boutiques each ordered a size run. Now let’s say a buyer from the fictitious company Mega-Super-Fashion comes along, sees your pea coat and says to himself, ‘Hmm, I could easily reproduce these in my multi-million dollar factory, take a few stylish snapshots, and sell them as my own and make a killing.’ Right about now you’re probably thinking, ‘thank goodness I’d be covered by the Innovative Design Protection and Piracy Prevention Act.’ Unfortunately, it’s this very act that could be fodder for M-S-F to sue you.

If you cannot unequivocally document that that exact pea coat was designed and made by you (and you don’t have thousands to spend on a lawyer to take you to a federal trial) the big company can claim ownership of the design and, with a short, swift, and very aggressive cease and desist order, put you out of business and crush your dreams. This isn’t meant to imply that any company in specific would partake in such unscrupulous practices, but there is such thing as a ‘strike suit’ a strategy where companies target hundreds of small businesses at the same time, sending out letters from their law departments demanding just a few thousand dollars in order to avoid legal action. Schumer’s proposed act could be another avenue of attack for such below the belt punches.

The objective is to be aware that at this time clothing cannot be copyrighted. Once Schumer’s Piracy Prevention Act goes into effect you cannot sue or be sued for making and selling slightly similar garments to those sold by others. However, your unique work and the unique works of others will be protected from illegal duplication. It’s up to the designer to document her creations thoroughly and publicly with the U.S. Patent Office and other outlets. If you don’t have the resources to do this, at the very least you should save anything that proves your unique designs are yours. Post your designs to Flickr and Photobucket as these often show when images were uploaded. If you have a website, keep images of your work on your site in a hidden directory. Saving local newspaper articles, screenshots of blogs, and even logs of your sold Etsy listings can be beneficial if someone should steal your designs, or claim you have stolen theirs.

In summation, let’s be grateful that lawmakers are finally validating clothing design as an art form. Let’s also be thankful that on it’s surface the Innovative Design Protection and Piracy Prevention Act (S. 3728) sets out to protect all fashion designers and their unique ideas and designs. But at the same time let’s be weary that the law functions as a double edge sword to be used by those underhanded and savvy individuals that make up the less attractive side of the industry.

For more information check out:
http://www.cfda.com/
http://www.cfda.com/schumer-introduces-legislation-to-protect-fashion-design/
http://counterfeitchic.com/
http://freakonomics.blogs.nytimes.com/2010/03/03/behind-the-scenes-of-oscar-fashion/
http://faviana.com
http://www.lexisnexis.com/Community/copyright-trademarklaw/blogs/fashionindustrylaw/archive/2010/08/09/schumer-introduces-legislation-to-protect-fashion-design.aspx
http://www.tabberone.com/Trademarks/trademarks.shtml

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