My two esteemed fashion law colleagues and fellow pioneers in the fashion law field are split down the middle on the IDPPPA aka Fashion Copyright bill. If you recall, one of my earlier posts when I established my law firm blog mid-2010, was to introduce you all to Susan Scafidi and her excellent work in establishing the first ever Fashion Law Institute in the nation. Fordham’s Fashion Law Institute just clocked one year. Congratulations to Scafidi and FFLI. Amidst this wonderful growth and evolution that has been taking place in Fashion Law, a bigger dispute has been over the Fashion Copyright Bill.
The bill was first introduced July 2006 which you can read here. Since then, it has received many amendments, has been introduced into the house and is now awaiting introduction into the Senate.
This bill has caused what is nothing short of an East Coast v. West Coast Fashion Law war.
Fashion organizations and my fashion law colleagues on the West Coast disagree with and fight the Fashion Copyright bill vigorously. Indeed someone who is proving to be the poster face for opposition to the bill is my colleague Staci Riordan. Here is the gist of what Riordan has to say:
” it is not needed;
it will increase the costs of fashion;
it will interrupt the business of fashion;
it lacks notice and administrability;
it only benefits big fashion houses; and
will cause tons of needless litigation.
. . . After watching Professor Scafidi’s comments during the Bloomberg law interview (posted below), I felt compelled to again reiterate what ever litigator knows as fact: a heighten pleading standard will not deter frivolous litigation. PLEADING, which you do in a complaint, and PROVING, which you do at trial, are two very different things.
In a complaint, you only need to write words down on a piece of paper that you believe to be true at the time they are written. Now, 99.9% of the designers I know think they create “new” and “unique” designs. You fashion history students know that all of these designers are wrong — give me two days and two interns and we can find the “inspiration” and references to trace the history of the garment.
So, under IDPPPA’s “heighten pleading standard” all a designer needs to do is write on paper that their design is original and the suit stays in court. Then, the improperly sued defendant must pay a lawyer to PROVE that the designer is wrong – i.e. the design is not “original.”
If the designer turns out to be wrong, which they likely will, there is no harm to them and they walk away. Why? . . .”
You can read Riordan’s view here.
I’ll let you watch Susan’s interview with Bloomberg law in a minute. But from a practical standpoint, I don’t doubt that this bill would not create groundless and costly litigation. Trial lawyers know that with a “substantially identical” standard, there is pragmatically a lot to fight about. A jury or judge trying to determine what is “substantially identical?” Scafidi’s response was not as strong as I would have expected.
I also think Scafidi’s statement in the video about having six versions of a DVF garment, for example, but with slight variation, underscores the point. Finally, the USA is a very litigious society so comparing it to other nations, as Scafidi does in the video, with fashion copyright laws does not accurately depict the reality of a bill with just the right lingo to set off loads of litigation.
I do, however, believe Scafidi’s efforts, at the very minimum, has forced both the legal and fashion communities to revisit and have a candid discussion about whether copyright protection for fashion designs makes sense.
Check out Scafidi’s perspective below.
Photocredit: Fordham Fashion Law Institute One Year Anniversary Facebook fan page