Fashion Law : Fashion Lawyer & Attorney : Fox Rothschild Law Firm : Licensing, Intellectual Property

In a position paper published by the California Apparel News on September 24, 1010, Kevin M. Burke President and CEO, American Apparel & Footwear Association ("AAFA") said:

The IDPPPA also dramatically curtails the opportunities for the industry to become mired in frivolous lawsuits. Unlike previous attempts at design-piracy legislation, this bill establishes a clear system to both initiate and defend against an infringement claim.

To discourage legal intimidation and unnecessary lawsuits, the legislation creates a heightened three-step pleading process in which the burden of proof lies completely with the plaintiff. A plaintiff must demonstrate that the design in question is protectable, the offending design is substantially identical and the infringer had access to the protected design. In other words, this improved pleading requirement stops mischief before it even hits the courtroom.
 

As a seasoned fashion litigator, I can tell you that Mr. Burke is just wrong.  There is nothing the IDPPPA pleading requirement, heightened or not, that would deter a plaintiff from suing that believed that its design was original. 

Lay people tend to forget that pleading does not equal proving.  You prove to a jury or judge, at the end of the litigation process. 

The purpose of pleading is to give the other side enough information so they know why you are suing them.  It occurs at the very beginning of a lawsuit and if you don't plead well, judges almost always let you try again.

Again, if I were a proponent of this bill, and I really wanted it to deter frivolous litigation, I would include ANTI-SLAPP like procedures, which significantly, make the Plaintiff pay for the Defendant's attorneys fees if the Defendant prevails.

But, my guess is that the CFDA and the AAFA aren't worried about defending suits, as their constituents will be the ones suing.

Only time will tell.

ps -- if you want to join me for a live discussion on the current state of Fashion Intellectually Property Law and IDPPPA, I will be presenting at GlobalTex on September 29, at 'Your Legal Lifeline - Specialists Required! '

The panel, which is from 4-6 in the West Hall, Hall A, is preceeded by a wine tasting starting at 3pm - fun!!  Hope to see you there.

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Apparel manufacturers.  I am worried about the Innovative Design Protection and Piracy Prevention Act ("IDPPPA") and so should you. 

Do you know that last week WWD predicted a 10-15% rise in the wholesale price of fashion products for spring 2011? Or home sales are down 27% this year and unemployment remains about 9.5%? Or that cotton costs are up 32.2% and analysts are predicting dim holiday sales?

The last thing our country, its fragile economy and the apparel industry needs is more legislation that is guaranteed to drive up the cost of fashion products.  IDPPPA would do just that. 

How?  By giving fashion houses with fat litigation budgets the opportunity to convince judges that their designs are uniquely different from anything that has ever been made before.  If you know your design history, or even have worked in the fashion business for awhile, you know how hard that standard is to meet. 

But this is America and everyone is "entitled" to their day in court.  Plaintiff's lawyers (working on a contingency) are creative and judges historically interpret copyright law expansively.  Companies all along the supply chain would pass off the cost of litigation to the retailer purchaser.  Just what the country needs right now, right?

And the harm of IDPPPA doesn't stop there.  Since IDPPPA requires a plaintiff show that a defendant had "access" to the alleged copied products, designers would have to stop:

• reading fashion magazines;
• shopping retail stores or attending trade shows;
• watching or subscribing to trend reports, or
• caring about the runway shows.

If they do, designers will be prohibited from claiming that their designs are the "result of independent creation."   Another hit our economy doesn't need.

So, if you want to influence the process, now is your chance!  Call your congressmen and senator today. 

Otherwise, you'll have no right to complain when it costs more for clothes for you and your family, or when an unscrupulous plaintiff (think of the ones we see making fabric claims) sues you.

Take action now!!!

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Well, we knew it was coming.  Today, Senator Charles Schumer introduced the Innovative Design Protection and Piracy Prevention Act, or Senate Bill S. 3728 (IDPPPA).

While it seems that NY academics, the Council of Fashion Designers of America (CFDA) and the American Apparel and Footwear Association (AAFA) have signed off on this bill, I cannot find any indication that the people involved in the business of fashion, or fashion litigators were consulted.

From a review of the bill, I only see some small improvements over the last version:

1. Home sewers are free to make copes of anything for personal use;
2. The increased damages that were proposed under DPPA were stricken, leaving section 1323 unchanged;
3. The Plaintiff will have to plead his or her case with particularity -- like a fraud cause of action now, for example.  This implies that the Plaintiff will have the burden of proof on those elements, but we'll have to see how the courts interpret that language; and
4. The drafters have tried to clarify what constitutes infringement.  The new standard is "substantially identical," which means "an article of apparel" (which includes clothes, handbags and eyeglass frames and hats, among other things) "which is so similar in appearance as to likely be mistaken for the protected designs, and contains only those differences in construction or designing which are merely trivial."  HUH?

Here are the confusing parts: 

First, fashion designs will automatically be protected so designers don't have to register the designs with the copyright office, saving the designer a $35 fee.  Interestingly, Counterfeit Chic is touting this point as a victory, but to me, how could one verify that a design is "new and unique" if there is no public database to search? 

Also, most federal circuits require copyright registration as a pre-requisite to filing suit.  In legal terms, this means a plaintiff does not have standing to file a claim unless they have a copyright registration.  Is this bill trying to change that federal requirement?

Second, so many designers mistakenly believe that their creation is new.  But almost all the design we see these days pull inspiration from the art of past designers.  A great example is Diane Von Furstenberg and the wrap dress.  She claims to have invented it, but fashion history students know that McCardell introduced a wrap dress in the 1940's.

Third, only an article that is "unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles," qualify as a fashion design.  As a member of the fashion community, I shrudder to think how a judge is going to decide THAT question.

In sum this propossed legislation ignore the realities of the business of fashion including the financial ramifications of such a law and would make judges the arbitrator of fashion.

For example, I see:

• a ton of litigation as the courts sort this out.  Pleading with particularity is no game changer.  It only adds an extra round of litigation costs.  Added litigation costs will raise the price consumer pays for apparel, something definitely not needed right now because the cost of clothing will likely rise anyways due to increasing cotton and labor prices.  Do we really need the consumer to bear more cost increases when our economy finally seems to be rebounding?  OR 
• No one will be able to create a "fashion design" that qualifies under IDPPA as written, making it needless and irrelevant.

So, while I wait to see how the rest of the industry reacts, I see this as a big win for lawyers and big companies with the resources to sue. For now, I stick to my previous position:

As a practicing fashion lawyer, litigator, former COO of apparel companies and the fourth generation of my family to work in fashion, law professors and politicians with no hands-on fashion industry experience should not be allowed to "fix" something that they have no practical knowledge of. 

 photo credit: CFA

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I just saw this presentation tonight online that Johanna Blakley gave at the TED conference:

Not sure if I embedded it correctly, so you may have to click here for the PDF or click here for it on You Tube.  Johanna oversees USC's Ready to Share project.

Anyone interested in Design Piracy or whether Fashion Should be Copyrighted should watch it.

And if any of you out there can introduce me to Johanna, I would love to meet her!

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