07.15.11

Fashion Fights Design Piracy

Proenza Schouler designers Lazaro Hernandez and Jack McCollough appeared on Capitol Hill Friday as part of the long fight to protect their work. Robin Givhan on why Congress doesn’t understand.

Seventh Avenue came to Capitol Hill Friday morning in its ongoing effort to persuade Congress to pass legislation giving copyright protections to the fashion industry. The fashion folks, shaking hands instead of bussing cheeks and looking all spit-shined for the occasion, testified before the House Subcommittee on Intellectual Property, Competition and the Internet—which is one of those government entities that no matter its good intentions comes across as a motley collection of distracted individuals caught up in a web of bureaucratic propriety and cultural cluelessness.

Among those testifying on behalf of the Innovative Design Protection and Piracy Prevention Act was Lazaro Hernandez, co-founder of Proenza Schouler. His business partner Jack McCollough was also there lending moral support, but only one could have a speaking role. The designers looked quite dapper in their dark suits and serious ties and could have been mistaken for junior staffers—albeit ones with access to a very good tailor.

A lot of designers have come to Washington to plead the fashion industry’s case and in each instance, they’ve brought a certain symbolic weight. In 2009, for example, Narciso Rodriguez, Thakoon Panichgul, Maria Cornejo, and Jason Wu—who were all thrust into the spotlight thanks to the patronage of first lady Michelle Obama—came to the Hill to have their say. At this hearing, Hernandez and McCollough represent the kind of next-generation designer the legislation is most directly aimed at protecting, said Steven Kolb, executive director of the Council of Fashion Designers of America.

The proposed legislation would extend copyright protection to “unique” fashion designs—ready-to-wear, accessories, lingerie—for a period lasting three years. Anything already in the marketplace would be considered in the public domain. A plaintiff would have to prove the design was unique, it was knowingly copied, and the copy was “substantially identical.” There are also penalties for frivolous claims.

Hernandez was charged with explaining what it means to have an idea knocked off and loosed into the marketplace. He used the example of his and McCollough’s PS1 satchel—a slouchy schoolboy bag with buckles—as an example of a unique product that has been copied so much their business has been undercut. He also noted that unlike in the past when there was a clear delineation between high-end designers and mass marketers, luxury consumers and bargain hunters, that is no longer the case. Bergdorf designers dabble in Target price points. Everyone is fishing in the same pool of customers. And designers don’t think they should have to compete with copies of their own work.

Current legislation is really aimed at protecting brand identity, not innovation.

Hernandez testified at a rapid-fire pace, editing his formal comments—submitted earlier in writing—to stay within the allotted five minutes. (If only the average politician could be held to such brevity!) Hernandez was followed by Jeannie Suk, a professor at Harvard Law School who has studied innovation in the fashion industry. As she put it, the legislation that now protects trademarks, such as Ralph Lauren’s polo pony or the Lacoste crocodile, is really aimed at protecting brand identity, not innovation. And Kurt Courtney, representing the American Apparel and Footwear Association, offered the support of its members, many of whom are the very mass-market manufacturers that are most likely to have designers like Hernandez crying foul.

The significant support of the AAFA comes after a year of negotiation in which the original bill, written nearly five years ago, was revised to make it more difficult for a designer to sue and to protect manufacturers’ right to be inspired by trends.

Opposing the legislation was Christopher Sprigman, a law professor at the University of Virginia, who came armed with slides, which in the wonkish world of Washington, is a bit like showing up with cupcakes for the whole class. He argues that there is no need for the piracy prevention act because the fashion industry as a whole isn’t being harmed by whatever copying there is. Why open the door to frivolous litigation and other potentially damaging repercussions without a compelling reason? Then he pointed to a line graph that looked a bit like a craggy EKG showing that high-end designer prices have only increased in the last decade, suggesting that low-end copyists are not degrading prices.

Suk countered that perhaps the high prices were an indicator of desperation: “Why are high prices seen as a sign of health?” To which consumers might well add: Yea, why? Why damnit?

After the experts ended their testimony, the gentlemen and gentle ladies—as the members of the subcommittee call each other—asked a few questions, but mostly seemed intent on underscoring how little they knew about fashion so that no matter how they might ultimately vote, it wouldn’t be because they were, you know, fashion sympathizers. “This is fascinating stuff here,” said Rep. John Conyers (D-MI). “The passion of Mr. Hernandez can’t be undervalued.”

Then added: “I don’t agree with you.”

For a brief moment, it looked like Rep. Sheila Jackson Lee (D-TX) was going to admit to a soft-spot for fashion. But no: “I have a great passion for… creating jobs.” Oh, so close.

Rep. Howard Coble (R-NC) left before asking any questions, but his aqua and seafoam green sofa-plaid sport jacket made it clear that he was in no danger of being perceived as fashiony.

Rep. Mel Watt (D-NC) wasn’t just intent on flagging his own fashion ignorance but also that of any juror who might be asked to sit on a piracy case. “I guess you’re not competing against Louis Vuitton. Maybe you do. I don’t know enough about this industry,” Watt said, flailing his hands. And pity the poor jurors who’d have to make heads or tails of satchel bags and hobos, shirring versus ruching. Juries can be trusted to root out pornography, know when sampled music becomes stolen music, and wrestle with DNA minutiae. Fashion, however, just might stymie them. So Watt asked Suk to work out precisely what sort of instructions a hopelessly befuddled jury might be given and get back to him.

And with that, the legislators dashed off to vote, to argue, to stonewall. The CFDA is hopeful that the legislation will be put to a vote by fall.