Most fashion civilians do not know the difference between counterfeiting and design piracy. Steve Kolb, executive director of the Council of Fashion Designers (CFDA), explains: “Everyone is against counterfeiting. Design piracy is exactly that. One has to copy the design first before attaching the counterfeit label. Design piracy is counterfeiting without the label.”

If you notice fashion piracy at all, it will likely be during Oscar week, according to Steve Gursky of Dreier LLP. It used to take months to mass produce copies of designs worn on the red carpet or seen in exclusive stores. With new technology, that process has been shortened to mere hours.  Susan Safidi of CounterfeitChic.com explains further: "This year as usual, Allan B. Schwartz of the label ABS will be on network television less than 24 hours after the Oscars (with fashions "inspired" by the stars). Before the rest of us have sipped our morning coffee, he is showing the world exact replicas of the dresses worn by Cameron Diaz, Cate Blanchett, Jennifer Lopez, and Penelope Cruz on the red carpet. The designer dress costing $10,000 is mass produced by ABS for $300. It will be this year’s prom or bridesmaid’s dress."

Steven Kolb emphasized the position taken by the CFDA, “We don’t want to outlaw the imitation of a look… just plagiarism. The fashion industry thrives on inspiration. After all, a designer’s ability to create a trend is often his mark of success." The proletariats among us justify the poaching of designs by ABS and others by thinking that they are bringing beauty to people who could not otherwise afford it. But, that is not quite true. Many designers want to produce lines at lower price points based upon their haute couture designs but are not given the opportunity. Furthermore, new designers have returned from their first runway shows with the hopes of developing accessibly priced lines only to discover that their original designs have already been produced by pirates in a Chinese factory. This illicit activity has put many emerging designers out of business after one season. 

Safidi, also a visiting law professor at Fordham University specializing in intellectual property, tells the story of one young milliner who nearly went out of business due to counterfeiting. “Not only did they copy her design down to the last detail, the counterfeiters approached the original factory to manufacture for them. Customers were calling and canceling orders from the creator because the price of the knockoff was lower. The customers found the lower price because the counterfeiters were advertising on the internet.”   

In addition to the designer being cheated when a fashion design is copied or stolen, the legitimate buyer of the design is wronged. Narcisco Rodriquez designed one of the most anticipated wedding dresses of the 1990's. Carolyn Bessette Kennedy wore his design for her wedding to John F. Kennedy Jr.  According to Counterfeitchic.com, one knockoff designer alone sold 80,000 copies. Rodriquez's work was clearly counterfeited and Ms. Bessette Kennedy's one of a kind wedding dress was found in shopping malls across America for the next decade.

It is a myth that only expensive designer clothes and haute couture are copied. Piracy can occur at any price point. Original designs created by H&M, a mass market retail chain with relatively low cost clothing, were recently boldly knocked off. The Swedish-based international chain with over 1400 stores did not hesitate to sue. H&M are among a number of discount retailers that have used the courts to enforce the protection of their product lines.

According to Alain Coblence, lawyer to the CFDA,  the outright copying of fashion designs could not occur in France or Italy. According to Ms. Scafidi, “The design of a fabric is protected under the same theory as paint to a canvas and ink to pen”. But yet the design of a dress or handbag which requires as much creativity and self expression is not protected.

Those countries, unlike the United States, have strict laws protecting designs whether or not they are registered. In some European countries an unregistered design is protected for three years and registered for five or more. The United States is the only industrialized nation in the world that does not provide legal protection for fashion designs.

In the United States, the copyright office and the registrar of copyrights, trademarks, and patents has refused to recognize design as an art so it not protected under the law. While trademarks protect only brand names and logos, the clothing itself remains without a safeguard. Designer clothing is considered a “useful item” so it is not protected under copyright law. The Supreme Court has also refused to extend copyright protection to designs in and of themselves.

Susan Scafidi takes exception to these decisions. “A ball gown is a work of art. What else are you going to do with it? Clean the house.”

Scafidi theorizes that there are several factors which contributed to the lack of protection for fashion under the copyright law. “Fashion is considered frivolous", she continues, "The industry has been dominated by immigrants and women.”

Rebecca Tushnet, an intellectual property professor at Georgetown University concurs with the gender bias. “It is interesting that just when women are about to get equal rights or equal protection in a certain area, protecting that area suddenly becomes unimportant. In addition, the argument that we don’t offer intellectual property protection because we value it so highly that we want it in the public domain is a lot like saying that we value women so highly that we want to keep them safe at home.”

Tushnet and Scafidi are in the minority. Most intellectual property academics want less protection rather than more. These academics believe it serves the public interest to scale back IP protections. The present law offers many contradictions. Even though most useful items cannot be protected, the Coke bottle from which millions world-wide drink from each day is protected as a trademark because of its unusual design. Under the principle of pen to paper or paintbrush to canvas being unique, the design of a particular fabric pattern is also protected. The one exception to this is when a fabric is a solid color. A surprise exemption to this complex set of rules is the Hermes’ Birkin bag. Due to its distinctive shape, the Birkin is one of the few design items which is protected. “It is a very strange statement to see that in the U.S. the trademark is protected, but the model, the shape or the design itself can not be protected,” said Patrick Thomas, President & CEO of Hermes. “Our creative activity in fashion and accessories are of the same nature as the professional efforts put into developing movies, music or medicines.”

If designers Diane Von Furstenberg, Zac Posen and Nicole Miller and Harper’s Bazaar editor Glenda Bailey and publisher Valerie Salembier have their way, original design will be protected under United States copyright law. Von Furstenberg made passage of this bill part of her platform when she successfully ran for president of the CFDA. “When I first created the wrap dress, imitators did not bother me- the more the merrier,” said Von Furstenberg. “Imitation is the highest form of flattery. But now the situation is a little different. The pirates are not only copying the design but also the material that is created right here in the studio. As president of the CFDA, I need to take a stand on this and protect the consumer and the quality of goods that they receive. This is about the consumer.”  She is taking action and has filed suit against Forever 21 for copyright infringement. Harley Lewin of Greenberg Traurig is representing Von Furstenberg.

“Fashion design is a $350 billion American industry. It is the only growth area in apparel manufacturing", said Congressman Bob Goodlatte (R-VA). “In addition to the jobs related to the manufacturing of apparel, it creates jobs in many sectors: printing, trucking, distribution, advertising, publicity, merchandising, and retail. By protecting a designer’s original work we are also protecting the many jobs that support that design.”

There is no doubt of the importance of the bill put forth by the CFDA and its proponents. The stores and other fashion retailers have said once there is a law enacted they will have the tools to pursue fashion pirates. Experts on global compatition te globally have theorized that America has not wrested the fashion crown from the French or Italians in part due to the lack of copyright protections. 

Congressmen Goodlatte (R-VA) and Bill Delahunt (D-MA) have introduced the Design Piracy Prohibition Act (HR 5055). The Design Piracy Prohibition Act protects designers by amending the Copyright Act to also include protections for fashion designs. As a result of the short production life cycle for fashion designs, the legislation outlines a limited period of protection suitable for the industry – three years. This legislation further establishes damages for infringing upon a fashion design at the greater of $250,000 or $5 per copy.

Advocates of the fashion designers still assert that the three year period is relatively short when considering that the design of a ship hull is protected for ten years and music enjoys a 95-year term of copyright protection. Additionally, the copyright protection is extended only if the designer has registered the design unlike in Europe where it is automatic. It should be noted that emerging designers can be crippled by the cost of registering their designs.

Alain Coblence, CFDA lawyer, was instrumental in drafting the Design Piracy Prohibition Act (HR 5055). He said, “The French and Italian fashion industries are very much behind the bill. The United States has become one of the biggest depositories for goods made in China because it is not presently illegal to import knock-off fashion items. After they arrive here, the counterfeit labels are sewed in the clothing in factories in the Lower East Side of New York.

The usual suspects like Walmart and Target were against the bill heralded by the CFDA. Mr. Coblence shared, “The Payless Shoe chain sent a letter to all the members on the House committee before the hearing on the bill urging them not to support the bill.” To date, the bill has not progressed too far. Steven Kolb, CFDA executive director said, “We are still working on the definition of original design.”

One of the arguments against the bill is a fear of a proliferation of lawsuits. This is unlikely. The bill has carved out exceptions to patent protection for design staples like the white button down shirt. The experience in Europe with its strict laws against design piracy has seen very few lawsuits. In France, out of 308 patent infringement cases in design, there are only ten in the fashion category. The laws in Europe seem to have successfully served as a deterrent.

As designs, in general and fashion in particular, are further valued within the American legal context new market norms may result. The recent efforts of the CFDA may just lead to the American fashion industry and its consumers benefiting from the protections provided by copyrights which are currently enjoyed by a wide variety of other industries and their European compatriots.