The Elephant on the Runway (part 1 of ?)

Posted by Charles Colman

Well, it seems the topic cannot be avoided any longer.  Various articles in the news last week practially compel LOF to finally address the elephant on the runway: federal legislation that would change the intellectual property landscape for fashion design.


As LOF has written about in the past, copyright is generally not very useful to fashion designers.  Yes, copyright does extend its warm (or sometimes frigid) embrace around fabric designs, images or designs affixed to a garment, and in rare instances, elements that are "physically or conceptually separable" from a garment, but for the most part, the Copyright Act considers items of apparel to be "useful articles" ineligible for protection.


Whether these distictions are sensible or not, the fact is that the current state of the law allows many people to get away with "knocking off" others' designs, as long as those designs do not contain any of the protectable elements mentioned above, a company's actual trademark, or a feature that consumers so strongly identify with a particular source that the design itself constitutes "trade dress."


Hundreds of bills have been introduced in Congress over the years in an attempt to grant additional intellectual property protection to fashion designs.  Most recently, Senator Schumer introduced a bill (uncatchily called "The Innovative Design Protection and Piracy Prevention Act") that would provide copyright-like protection to designs containing "a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs."  The Bill made it out of the Senate Judiciary Committee in early December, only to have to start all over again once the 111th Congress adjourned at the end of the month.

[Note: The writer co-chairs an American Bar Association subcommittee tasked with evaluating this bill; the views expressed here are those of the writer alone and are not necessarily the views of the ABA, or any subdivision thereof.]


This past week, New York's other senator, Kristen Gillibrand, hosted a roundable at FIT with members of the NYC fashion industry in which she addressed, among other things, the Schumer bill (of which Gillibrand is now apparently a co-sponsor.)  As far as LOF can determine, there has been no action whatsoever concerning the fashion bill since the 112th Congress was sworn in on January 6, 2011.


Thus, LOF and its readers can quite leisurely consider what garments, if any, are likely to contain "unique, distinguishable, non-trivial and non-utilitarian variation[s] over prior designs," as required under the Schumer/Gillibrand bill.


In a now-fraught interview with WWD earlier this month, Comme des Garçons mastermind Rei Kawakubo was quoted, ominously, as saying: "The motivation has always been to create something new, something that didn't exist before . . . .  The more experience I have and the more clothes I make, the more difficult it becomes to make something new.  Once I've made something, I don't want to do it again, so the breadth of possibility is becoming smaller."


Who can possibly (and credibly) challenge Rei's judgment about "what is new"?  Indeed, perhaps the easiest tomato to throw at the Schumer/Gillibrand bill -- and many have thrown it -- is that there is "nothing new in fashion."


Perhaps there is some truth to this.  One of LOF's favorite designers of menswear, Dries Van Noten, used one of LOF's least favorite materials, fur, on lapels in his collection shown last week in Paris.  Noten told The New York Times: "this sort of construction has its origins in the military uniforms for which lapels were first invented. Often one would be buttoned across the neck for extra warmth, but because that interrupted the shape (particularly a problem if any battle medals happened to be hanging there), a second lapel was needed to cover the chest."  Hence the Times' title of the story: "An Old Lapel Is New Again."


Meanwhile, Cate Blanchett has been sporting her own Dries, inspired not by military uniforms but by the outfits that Katharine Hepburn made her signature so many years ago.


And on Sunday, sadly, designer Charles Nolan passed away, after a notable career putting his "personal touch" on "American classics."  In 2008, for example, reportedly observed that Nolan had been inspired by American sportswear pioneer Claire McCardell.


In short, how many of the designs we see on the runway -- let alone in stores -- are "new"?  Or at least new enough that they contain a "unique, distinguishable, non-trivial and non-utilitarian variation over [all] prior designs"?  The question is not a rhetorical or sarcastic one.  Anyone who wishes to intelligently support or oppose the Schumer/Gillibrand bill must seriously ponder this question... assuming that the 112th Congress bothers to resurrect the legislation.


(LOF will tackle other aspects of the bill in later posts, in each instance expressing the views of the writer alone.)