Congress considers fashion’s copyrights

In a city where fake Kate Spade and Coach handbags are sold on street corners, members of Congress yesterday debated a House measure that aims to protect the $350 billion U.S. fashion industry from piracy.

Supporters say the bill especially will benefit young designers and small businesses, while opponents argue that innovation in fashion requires inspiration from other designs. Lawmakers expressed a desire to ensure that the U.S. fashion industry, centered in some of their home states, will thrive.

The bill's supporters said copyright protection is needed because of technological advancements that have allowed companies to issue knockoffs more quickly.

"Digital photographs from a runway show in New York or a red carpet in Los Angeles can be uploaded to the Internet within minutes, the images viewed at a factory in China, and copies offered for sale online within days -- months before the designer is able to deliver the original garment to stores," said Susan Scafidi, associate professor of law at Southern Methodist University.

About two-thirds of the value of all counterfeit goods, which include apparel and handbags, seized between Oct.1, 2003, and Sept, 30, 2005, by U.S. Customs and Border Protection were from China, said spokeswoman Lynn Hollinger.

D.C. native and fashion designer Jeffrey Banks pointed to this year's Golden Globes, when an exact copy of "Desperate Housewives" actress Marcia Cross' coral dress designed by young New York fashion designer Marc Bouwer showed up days later at department stores across the nation.

While trademark law protects designer logos and patent law can apply to designs that have a pictorial, graphic or sculptural feature, clothing is generally considered a "useful article" and is not protected under copyright law, said Rep. Lamar Smith, Texas Republican and chairman of the House Judiciary courts, the Internet and intellectual property subcommittee.

A bill introduced in March by Rep. Robert W. Goodlatte, Virginia Republican, would allow designers to register for three years of copyright protection for apparel such as clothing, handbags, footwear, belts and eyeglass frames. Violators would be penalized with a $250,000 fine or $5 for each copied item, whichever was more.

"Fashion design piracy has become a blight that affects all who depend on the U.S. fashion industry," Mr. Banks said.

The production, distribution and sale of unauthorized goods has cost U.S. companies between $200 and $250 billion each year as well as 750,000 jobs to date, according to U.S. Chamber of Commerce estimates.

Piracy prevents U.S. designers from "reaping a fair return on their investments," Mr. Goodlatte said.

The domestic value of counterfeit goods that U.S. Customs and Border Protection has seized has more than doubled between fiscal 2001 and fiscal 2004, Ms. Hollinger said.

The domestic value -- which is the cost of the seized goods, the cost of shipping and importing the goods and the amount of profit from the goods -- jumped from $57.4 million in fiscal 2001 to $138.8 million in fiscal 2004.

However, a fashion trend analyst said the industry thrives "because of, and not in spite of, a lack of copyright protection."

"Fashion designers influence each other and appropriate each others' designs into their own lines," said David Wolfe, creative director for Doneger Creative Services in New York.

Because of the give-and-take among designers, Mr. Wolfe said it would be difficult to distinguish between a design that is copied and a design that is a product of inspiration.

University of Virginia law professor Christopher Sprigman said design imitation remains prevalent in Europe, citing stores such as Zara, H&M and Topshop, despite an EU law that grants automatic copyright protection for three years in the 25 member countries and allows designers to register for up to 25 years of copyright protection.