Sleepycatz

For Me and Not for Thee

Oh, this is great. Earlier this year, Christopher Knight made a video to promote his run for the Board of Education in Rockingham County, NC. He posted his video to you-tube, and because it was clever and funny it got a lot of attention. VH-1 decided to include Mr. Knight’s video in it’s Web Junk 2.0 show. Mr. Knight, excited to see his video broadcast internationally, posted a copy of his segment of Web Junk 2.0 on You-Tube. Viacom, the parent of VH-1, then issued a take down order to You-Tube, and threatened Mr. Knight with copyright infringement. So to recap: Knight made a video which Viacom then broadcast without Knight’s permission; Knight posted a copy of that video showing his original video online and was sited for copyright violation of his own original material.

This is an example of the complete insanity which has come out of the copyright wars. Under Viacom’s logic, once they use someone else’s content they own it. But it is more likely that Viacom has just decided that if you are not a multi-national media company you have no copyright protection.

Fashion Police

At a time when people are beginning to realize the massive abuse and problems caused by the current intellectual property laws, in steps congress to expand and further confuse the system. Just prior to his summer vacation, Sen. Schumer (NY) introduced the Design Piracy Prohibition Act of 2007. Like pretty much every bill introduced in congress for the last 10 years, the name of the act has almost nothing to do with its function, and the small amount of media coverage of this bill has been erroneous at best. Of course, getting the media to intelligently cover copyright, or Internet issues for that matter, is like teaching  cats to play chess: they’ll knock around the pieces to amuse themselves, but will never understand the game.

Though billed as a piracy protection act, the bill goes far beyond that. Fashion designers are currently protected from knockoffs and piracy through trademark enforcement of their brands. One cannot, for instance, sell a leather handbag labeled as Coach if it is not made by Coach. Trademark enforcement is the bread and butter of litigation in the fashion world. Additionally, a designer may copyright a fabric pattern design under the existing classifications. This requires anyone wishing to use the pattern in their clothes to obtain a license from the copyright holder.

Schumer’s bill adds fashion design to existing copyright laws as an area of protection. This is a bureaucratic nightmare and a litigious boondoggle in the making. The proposed law defines the following as items protected by copyright:

A ‘fashion design’ is the appearance as a whole of an article of apparel, including its ornamentation.

The term ‘design’ includes fashion design, except to the extent expressly limited to the design of a vessel.

The term ‘apparel’ means:

an article of men’s, women’s, or children’s clothing, including undergarments, outerwear, gloves, footwear, and headgear; handbags, purses, and tote bags; belts; and eyeglass frames.’.

If this seems a bit ambiguous, you’re right. There is nothing denoting what constitutes an original design or the extent to which it is protected. For instance, if a designer attempts to copyright a pair of green pants with red pockets can they sue another designer who sells a pair of blue pants with red pockets? For that matter, does simply having a different colored pocket allow an item to protection, or has the idea been in circulation long enough it is public domain? Finally, how may ways are there to design a pair of pants, or a handbag, or a dress, or eyeglasses which does not derive from previous works? Unfortunately, questions like these an many many other will have to be answered through lengthy, complicated, litigation if the bill becomes law.

Finally, the fashion industry has survived and even thrived with a lack of intellectual property controls until now. As Kal Raustiala and Chris Sprigman pointed out last year in their paper “The Piracy Paradox: Innovation and Intellectual Property in Fashion Design,” the lack of intellectual property protection has actually forced the fashion industry to be more innovative and competitive then those industries with strong protections.

In recent years copyright law has become a cesspool of highhanded litigation and threats. The protection of intellectual property is suppose to allow for fair compensation to creators in order to encourage innovation. However, the opposite is becoming the norm. Innovation is being stifled by copyright litigation and confusion. To add, as Sen. Schumer wishes, fashion design to this already deepening pool is simply to add further litigation, and stifle competition and innovation. This bill will not give additional protection to designers from piracy, but simply add costs and create havoc in a marketplace is actually working quite well.