Tag Archives: legislation

The Uphill Battle: Fashion Designs and Separability

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By Erica Gould

On Monday, October 15, in a non-precedential opinion, the Court of Appeals for the Second Circuit affirmed the July 2011 decision of the District Court to dismiss Jovani Fashion Ltd.’s copyright infringement claims against Fiesta Fashions. (Jovani Fashion Ltd. v. Fiesta Fashions, 2d Cir., No. 12-598-cv, 10/15/12) At issue were the design features of a prom dress, which included the sequin and crystal covered bodice, ruched satin at the waist, and layers of tulle in the skirt. The Appeals Court held that these aesthetic features were inseparable from the functional purposes of the dress, and therefore the decorations did not warrant copyright protection.

Under the doctrine of functionality, copyright protection does not extend to the functional elements of a useful article. Useful articles are defined under 17 U.S.C. § 101 of the Copyright Act as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” This limitation has created the largest obstacle for Fashion Designers because Courts have established that all clothing is considered a useful article under the Copyright Act. In arguing that the decoration of the dress at issue warranted copyright protection, Jovani alleged that it was not a useful article because it necessarily portrayed the appearance of the dress. The Court disagreed and held that copyright protection did not extend to these design features under the doctrine of separability. Continue reading →

Fashion Law Editorial: Let’s Pass the New Design Piracy Bill

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by Prof. Guillermo C. Jimenez (Fashion Institute of Technology) – Editor in Chief, Fashion Law Center

On September 10, 2012 Senator Charles Schumer of New York quietly re-introduced legislation to protect fashion designs with copyright law in America.

I have gone on the record many times calling on the US Congress to pass this sorely-needed legislation, which would finally put American fashion designers on a par with European designers.  In supporting  this bill, I am joining ranks with the Council of Fashion Designers of America (CFDA), the American Association of Footwear and Apparel (AAFA), and such noted Fashion Law scholars as Susan Scafidi of Fordham Law School and Jeannie Suk of Harvard Law School.

Though I admire Senator Schumer’s persistence, I must be frank in expressing my disappointment with the way this bill has been introduced and its current prospects for passage, which are regrettably quite slim.

This muted and untimely submission is no way to get such an important bill passed.  With a Presidential election looming and a ridiculously-crowded Congressional calendar blocking the way, it is hard to see how this bill will even get to the floor, much less passed.   I fear that the good Senator is merely reaffirming his loyal support for the New York fashion industry, laudable enough, but this effort – at least so far – is just too half-hearted.

As Steven Kolb of the CFDA has pointed out realistically, passing a copyright bill through Congress is more of a marathon than a sprint.  However, even marathons have a clear finish line and it is difficult to see one here.

I am therefore urging Senator Schumer and his allies in the Congress, the CFDA, and the AAFA, to raise the intensity of their campaign to another level.  Most importantly, I believe it is time to involve the Fashion Design and Merchandising schools around the country, and to reach out to all the design students and young designers struggling to make it in this challenging global economy.  To get this bill past the finish line, we need grassroots support from the entire American creative community.  Great fashion designers like Diane Von Furstenberg and Lazaro Hernandez are sometimes perceived as members of a rarefied elite  – and it is therefore not always easy to get broad support, especially in the face of strong opposition from sectors of the retail industry (especially in California).  We need to point out that passage of this bill will mean more money for the design community – and just as importantly, more jobs for young designers.

Moreover, proponents of this bill need to challenge and confront the misguided intellectual framework of the opposition.  In particular, it is time to challenge the widely-circulated but specious arguments put forward by a few influential opponents, such as those of law professors Kal Raustiala (UCLA) and Christoper Sprigman (University of Virginia).

In a noted law review article which the authors have reprised in a number of formats, from NPR interviews to NY Times articles, Raustiala and Sprigman have marketed a contrarian theory – that weak intellectual property protection is actually good for fashion.  This illogical and unsubstantiated argument has been naively eaten up by the press and taken for unassailable truth by members of the legal and retail communities.  But it is just plain wrong.

Raustiala and Sprigman’s argument (which they call the Piracy Paradox) is principally an economic  one:  the fashion industry is more vibrant without strong legal protection.

This argument is naïve both economically and practically.   Where is the evidence?

The first challenge I make to Raustiala/Sprigman is this one: how do they explain Europe? The EU has extremely strong fashion design protection, much stronger than anything we are proposing in the US.  Yet, has fashion disappeared from Europe?  Not last time I checked.  Have European fashion companies been deluged with frivolous litigation? Quite the contrary, as Jeannie Suk pointed out cogently, European fast-fashion “copycats” like H&M and Zara are rarely sued, while American copycat Forever 21 is permanently in court, having been sued dozens and dozens of times. Why is that?  It is because the true state of affairs is exactly the opposite of what is described in the Piracy Paradox.  Actually, it is America’s extremely lax protection of fashion designs that has encouraged copycats to perpetually skirt the limits of legal imitation – and very often, they go too far, and end up in court.

Why is Zara (a Spanish company) able to avoid the legal skirmishes that plague Forever 21 (an American one)?  The answer is simple and powerful: jobs for young designers.  Zara employs designers to make sure that when they imitate a trending design they also vary it enough so that they escape running afoul of another designer’s intellectual property.  The result is that Zara’s apparel looks trendy and reminds one of leading designers, but unlike Forever 21, they don’t produce products that are virtually indistinguishable from those of the fashion leaders.  When Forever 21 copies a DVF dress, it can be almost impossible for the casual viewer to detect a difference.   Forever 21’s “designers” are not really doing much design, so Forever 21 doesn’t have to hire many young designers.  That means fewer jobs for young designers in our depressed job market for young people.

Furthermore, Raustiala/Sprigman never square their argument with the fact that in America we actually have very strong legal protection for some aspects of fashion – trademarks , fabric prints and jewelry, for example.  So where is the evidence that the fabric print and jewelry sectors are being harmed by their strong protection?  There is none.

Another argument frequently bruited by the nay-sayers is that Design Piracy legislation would lead to massive price increases (this argument is vigorously advanced by Fashion Law blogger Staci Riordan of the Fox Rothschild law firm).  Riordan mocked the previous bill as the “Destruction of Affordable Fashion Bill.”

But again, where is the evidence?  Zara has lower price points in Europe than in the USA.  H&M is one of the lowest-cost retailers in America, but they are selling designs that not only respect US law, but also stringent European law.   As anyone knows who has ever shopped in an H&M, the price points are very low.

Presumably, Raustiala/Sprigman and Riordan are expecting a deluge of frivolous litigation if the bill is passed.  However, the bill (at least in its most recent incarnations) has been so narrowly-crafted that it is hard to see why that would happen.  First of all, it would only protect truly original designs, which as every fashionista knows, are  rare.  The vast preponderance of fashion products would never be affected.   The American bill only proposes to protect designs for three short years, while European protection can last up to 25 years.

Finally, the U.S. should adopt Design Piracy legislation because fashion is a creative industry and fashion designs deserve the same respect from the law as other creative works, such as books, films and sound recordings.  Our copyright law is absurdly inconsistent if it does not protect fashion designs. Our legislators have seen fit to extend copyright protection to architectural works, software programs, silicon chip designs, and even….vessel hulls. I would submit that the striking creations of Karl Lagerfeld, Marc Jacobs and Jason Wu can compete with the creativity of even the loveliest of vessel hulls, or the most elegant of silicon chips.

I will concede that fashion titans like LVMH might be tempted to use the new law to “beat up” on small designers (no disrespect to Vuitton and company, but they are quite well-known in the industry for their aggressive protection of legal rights). But then, LVMH already does that anyway, even with the existing state of the law (see the very funny Chewy Vuitton case or LVMH’s silly cease and desist letter to a Fashion Law seminar at the University of Pennsylvania). With the passage of design piracy legislation, however, the plucky young designer would have something to fight back with. It can indeed be expensive and difficult to enforce legal rights, but that is still better than having no legal rights at all, which is the current sad state of affairs for creative American fashion designers.

Professor Jimenez’s views are his alone and do not in any way officially represent those of the Fashion Institute of Technology or any other group.

Israeli Law Bans Use of Underweight Models

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Israel's top model Bar Refaeli in her latest Agua Bendita shoot. (copyright Splash News/Agua Bendita)

A ban on the use of underweight models in local advertisements and publications has been imposed by Israel via a law passed in March.  The new law, which will be applied at every photo shoot in Israel that will produce images to be used on the Israeli market, requires each fashion model to produce a recent medical report to prove that they are not malnourished.  The report, which uses World Health Organization standards to determine malnourishment (as explained below), must not be more than ninety (90) days old at the time of the photo shoot.  The law is believed to be the first of its kind in the world.

Additionally, the law requires companies to disclose if image-editing methods such as digital tools were used to make models appear thinner than they actually are.  As defined by an unofficial translation of Law for Restricting Weight in the Modeling Industry, 5772-2012, Israeli Knesset, March 19, 2012, a clarification must be provided and shown in a conspicuous place and in an obvious color and size of the advertisement, if editing was used.  This law will not, however, apply to foreign publications sold in Israel, prompting concern that the law will not have a measurable impact at all – Israeli teens often take their cues from international media in addition to local publications.

The World Health Organization utilizes the body mass index system, where a BMI below 18.5 indicates malnutrition in the UN agency’s scheme.  According to this standard, a woman who is 5 foot 8 inches tall should not weigh less than 119 pounds.  The World Health Organization explains BMI as a simple index of weight-for-height, commonly used to classify underweight, overweight, and obesity in adults. Continue reading →