Got Innovation? Senate Bill S3523 and You

Another term that gets abused a lot is some form of the word innovation. For example, Senate Bill S3523, which states right in the middle of the actual filing that it should be cited as the “Innovative Design Protection Act of 2012.”

Can I just say here having read the entire bill I’m not sure where the innovation lies, but that’s actually beside the point. More to the point, our ‘friends’ in congress have sent down something that is potentially very dangerous for the small and emerging design houses out there, should our bad boys and girls in Congress vote this bitch into law.

Why? Well, let’s do a for-example. You’re a small designer, and all you want to do is create things. You’ve come up with an epic design for Fall 2013 and you spend your life savings (or some fraction thereof) getting it produced. You aren’t worried about the expense because it’s going to be a slamdunk style that everyone is going to want. Which proves to be true but….suddenly, like a leviathan out of the deep, one of the big design houses sends you a cease-and-desist letter. You are infringing on their copyrighted T-shirt-with-one-red-sleeve-and-one-blue-sleeve that they produced first in Fall of 2010.

And suddenly all the cash you sank into your T-shirt-with-one-red-sleeve-and-one-blue-sleeve-with-a-rhinestud-motif is about to be lost without a chance of recovery because you have to address this supposed infringement right now – and that usually means removing all of your T-shirts from sale until it’s established you did or did not infringe.

There’s a clause pretty early in the bill, that says “provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.’ My emphasis, because this is the first point in the bill (on line 21 if you’re interested) where my antenna go up.

Because here’s the thing, you know who decides what’s ‘unique’, ‘non-trivial’, and ‘non-utilitarian’? It’s not going to be a fashion designer. It will be a lawyer or lawyers and one or more judges. There may be an ‘expert witness’ or two but odds are good it’s not going to be your expert witness.

But, you say, my design is completely different. The left sleeve is red and the right sleeve is blue, and the body is white, and I put this cute rhinestud motif of fireworks on the chest. Their design has a red sleeve on the right and a blue sleeve on the left, and the color palette is completely different. Their colors have brownish tones to them and uses an old color palette. Mine have blackened tones. Anyone can see they’re completely different.

Well, maybe another designer. And maybe not even all of those. Remember Louboutin v. YSL? Please bear in mind, though, your copyright infringement case will be decided not by other design practitioners but by lawyers. The odds are really good they will not be able to look at a T-shirt and see the more or less subtle difference in color variation. I’m not slamming lawyers – the ability to see color and color range is genetically determined, and your diet and lifestyle have an impact on it as well. Some of us are better then colorimetric machines at seeing very slight differences in colors (guess which of us get to do lab dip approvals?) but most people do not/can not see the difference in color.

Will your design be ‘unique’ enough by switching color on the sleeves and adding the rhinestud? The color shift and the change of placement is certainly utilitarian, but is it unique and non-trivial? I’ve personally never designed a shirt with two different color sleeves, but there’s no doubt in my mind that there are designers out there who have. It’s going to be a Solomonic task to determine what is “unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.”

In the meantime, back to you, my friend, with your container of T-shirts sailing over to your warehouse.  You are in an interesting position. You have to prove you are innocent of copyright infringement before you can sell your expensive design run. That means you have to hire a lawyer. You’re a small house and unless you are being bankrolled by a lawyer or by someone with very deep pockets, the odds are that defending a single copyright infringement lawsuit will prove so costly it will drive your company out of business.  To the bigger houses, the ones with in-house counsel, it’s one of many suits their lawyers are prosecuting.

Fashion works on a two-year cycle. There’s a wonderful monologue by Meryl Streep in the Devil Wears Prada about how fashion and style gets interpreted and commodified for the different fashion markets. Suffice it to say a 3-year protection for fashion would disrupt this cycle, to the financial betterment of the larger houses, but to the detriment of the smaller houses.

I’m not a lawyer, and I don’t play one on TV. I admire how they’ve been taught to think. But I’m also jaded and cynical on top of being educated.  Looking at this one scenario, I have to wonder who Senate Bill 3523 is really supposed to ‘protect’?

Senate Bill S3523 is sponsored by Charles Schumer, who is a NY congressman and who has a deep base in New York City, a global fashion mecca. Schumer was guided by members of the Council of Fashion Designers of America. CFDA members are well-heeled–it’s an expensive organization to join. Do you see a trend here?

Even if I didn’t know the background of the active players, this bill still reads ‘protect the rich’ to me. It’s not intended to protect the small houses, who aren’t going to be able to foot the expensive legal bills to prosecute or defend their design. If S3523 gets passed into law, it’s going to be even more challenging for a small design house to do business.

Oh yeah, and this idea that this bill is innovative? I’m not sure how, quite honestly, other than to attempt to change some specific language in Title 17 of the United States Code. There’s some other specific language in the Bill that is even more disconcerting to me as a technical designer, and showed me that this Bill was framed by non-practitioners. It’s not innovative either, and I think it actually works to stifle innovation. But we’ll look at that another day.

* PS, don’t Google Rhinestud. At least not in the office. It’s not pretty. I had no idea.

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