Schumer’s Legislation Protects American Fashion Designers From Being Copied and Losing Out to Cheap Knock-Offs, Protecting Nearly 200,000 NY Jobs; New York City Fashion Industry at a Disadvantage Because of Greater Copyright Protections Overseas
Fashion Stakeholders from All Segments of the Industry Agree that New Fashion Bill Would Finally Provide the Industry with Much-Needed Protection
Schumer: I Will Fight Tooth and Nail to Ensure that New York’s Fashion Industry Continues to Thrive
United States Senator Charles E. Schumer today announced that he has re-introduced legislation that would protect the New York and United States fashion industry from copy-cat knock-offs. The legislation provides a very limited intellectual property protection to the most original fashion designs – those that are extremely unique and distinguishable – and does so in a way that limits any collateral costs. The legislation, originally introduced by Schumer last year, failed to receive a vote on the Senate floor after passing out of the Judiciary Committee. Today, Schumer announced he was re-introducing this legislation which has been written in close collaboration with key stakeholders such as the Council of Fashion Designers of America, and the American Apparel & Footwear Association and NetCoalition.
“New York City is the fashion capital of the country, playing an enormous role in New York’s greater economy by employing nearly 200,000 people and generating billions of dollars in total wages,” said Schumer. “But copycat knock offs are hurting America’s fashion industry, and overseas fashion designers are reaping the benefits because of their greater protections. My new-and-improved fashion bill has the support of America’s key fashion stakeholders and will provide intellectual property protections to original fashion designers right here in New York.”
“The Council of Fashion Designers of America (CFDA) is committed to assuring that American designers enjoy the same intellectual property protection for fashion design that nearly all other industrialized countries have, and we strongly support the Innovative Design Protection Act,” said the Council of Fashion Designers of America (CFDA) Executive Director Steve Kolb. “We have worked closely with the American Apparel and Footwear Association (AAFA) to make sure it’s a bill they can support, and we have worked with other stakeholders, as well, to ensure this legislation is inclusive and supports all segments of our industry.”
“The Innovative Design Protection Act is a workable and practical approach to the real but limited issue of design piracy. I applaud Senator Schumer for his proactive effort in bringing all stakeholders together in search of a solution that protects genuine creativity in fashion design but still allows for the industry to explore the trends hardworking American families on a budget desire,” said American Apparel & Footwear Association (AAFA) President and CEO Kevin M. Burke.
The fashion industry plays a vital role in the New York economy. The fashion industry employs nearly 200,000 people in New York City alone, generates nearly $10 billion in total wages, and generates tax revenues of $811 million. Over 800 fashion companies are headquartered in New York City, more than double the number in Paris, yet French designers have greater copyright protections. Twice a year, Fashion Week in New York generates $466 million in direct visitor spending, leading to $782 million in total economic impact per year.
But these jobs and this revenue for New York are currently in jeopardy because the United States does not provide any protection for fashion designers against having their designs pilfered. If Congress does not act, the U.S. risks losing these jobs to Europe or to Japan, which offer more stringent intellectual property protections to shield the industry from design thieves.
The Schumer legislation balances the need to protect jobs and innovation in the fashion industry and the need to keep clothing cheap, affordable, and accessible. Under the Schumer legislation, only truly unique fashion designs are protected. The standard for protection under the bill is that the design must be the result of the designer’s own creative endeavor and must provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles. Colors and patterns cannot be used in determining whether a design is protected. Furthermore, the protection begins when a design is made public and protection lasts for only a period of three years. Anything that has been created prior to the enactment of this legislation is considered public domain and cannot be protected.
In order for a design to count as infringing on a protected design, the copy must be “substantially identical,” meaning it is so similar in appearance that it is likely to be mistaken for the protected design. It should contain only those differences in construction or design which are merely trivial. The bill also lists the limits on liability, meaning there is no liability for designs that are the work of a defendant’s independent creation and there is no liability for someone who copies the design for his or her personal home use. The legislation also protects retailers and consumers from liability. Additionally, the bill reflects suggestions put forth by NetCoalition, which represents a large number of global Internet and technology companies, to mitigate concerns about secondary liability.
Finally, the bill puts a high burden on plaintiffs to bring a case to court, in order to limit the costs of frivolous litigation. The bill requires particularized pleadings, meaning that the plaintiff will have to plead facts establishing that he or she has a case and there are severe penalties for misrepresentation by a plaintiff.
Schumer noted that the Innovative Design Protection Act, of the 112th Congress, has unwavering support from key fashion stakeholders all across the country and Schumer will continue to fight tooth and nail to ensure that this legislation passes.