The Innovative Design Protection Act (S.3523) would extend copyright protection for three years to fashion designs, including “undergarments, outerwear, gloves, footwear, and headgear; handbags, purses, wallets, tote bags, and belts; and eyeglass frames.” (Bill text.) Despite being introduced in every Congress since 2006, the bill has barely eked out of committee and no version has been brought to a floor vote.
On the surface, it seems that Congress should have done more with this proposal. It would make U.S. law commensurate with designer protections in France, Canada, and other countries. Supporters argue this would save U.S. jobs and constrain foreign pirates from stealing American ingenuity. Congress has previously carved out copyright protections for other useful articles. And there is a popular industry lobby behind the proposal. What’s more, the courts have recently protected fashion designs. So why haven’t the authors of the bill celebrated yet?
1. Because fashion design in the U.S. is centered in a relatively few locales, it doesn’t yield political gains to a sufficient number of congressional districts or states. But this explanation is a false start because legislation like this gets logrolled all the time.
2. It is simply a bad idea and doesn’t pass even Washington’s sniff test. This ascribes much credit to Congress in sifting good ideas from bad.
3. The lobby, while part of it is popular and noticeable, is not unified behind the idea. High-end designers have been backing the idea from the start, but clothing and shoe makers dug in their heels early and later came on board nominally (they prefer reducing import tariffs).
4. A version of the fashion copyright bill was first introduced in the House in 2006, just as the housing bubble was going pop. With Washington focused on the financial crisis, terrorism, and unemployment, and with a growing public furor over economic inequality, the deck has been stacked against distributing rents to high-end designers.
5. Increased party polarization over the past decade has made it difficult to establish winning coalitions for bills like these. A few days ago I asked Chris Sprigman (co-author of “The Piracy Paradox”) about this. He said, “That’s generally true, but hasn’t been true of copyright. Copyright has mostly been bipartisan.” While he and Kal Raustiala predicted after the recent election that the GOP could potentially take a more reluctant stance on copyright: “then as if on cue, the whole Republican Study Committee fracas over the “anti-copyright” report erupted.” Chris elaborates here.
In sum: It’s conceivable the bill could just hang around long enough and a political opportunity will emerge. Yet having barely made it out of committee, and with no floor vote in either chamber, the proposal hasn’t been put to a serious political test. So it could just be too politically risky. Everyone buys clothes and shoes, and they presumably like that they’re spending less and less on apparel. Plus, through their regular shopping experiences, they can also see vividly that knockoffs are the reason they have inexpensive options. Do elected officials really want to test those waters? It’s difficult to see a winning coalition forming against the potential backlash that fashion copyright would generate.
More on these issues from MR:
Alex covered the rapid cameo of the Republican Study Committee’s “radical but sensible position paper on copyright.”
Tyler covered “The Piracy Paradox” in his February 2006 entry, “How does the fashion industry work without copyright?” See also his: “Can we do without digital rights management?” and why the economics of food recipes resists copyright (“Food relies so much on execution…”); and why the French prioritize copyright.