Back to S 3523: What Is Trivial?

I actually really wanted to write a little about Design Thinking, which seems to be making massive inroads into modern business, particularly software. But Since Senate Bill 3523, the”Innovative Design Protection Act of 2012” passed the Judiciary Committee, it’s more important to poke at this a little more.

There are several critical points in this bill that should concern you, indie or emerging designer. One of the first is this one:

“REVISIONS, ADAPTATIONS, AND REARRANGEMENTS.—Section 1303 of title 17, United States Code, is amended by adding at the end the following: ‘‘The presence or absence of a particular color or colors or of a pictorial or graphic work imprinted on fabric shall not be considered in determining the protection of a fashion design”

Translation into Fashion Speak: an actual Graphic T is not protected, but the graphics used on the T are covered under existing provisions in Title 17, so knocking off the graphic itself is still a bad idea, but under the above provision you could conceivably still mimic the graphic placements and color usage. (Note, I’m saying what you could possibly do. I am not recommending this as a good idea, even with today’s laws.)

Then we get to this:

“(11) In the case of a fashion design, the term ‘substantially identical’ means an article of apparel which is so similar in appearance as to be likely to be mistaken for the protected design, and contains only those differences in construction or design which are merely trivial.’’; and (3) by adding at the end the following:
‘‘(c) RULE OF CONSTRUCTION.—In the case of a fashion design under this chapter, those differences or variations which are considered non-trivial for the purposes of establishing that a design is subject to protection under subsection (b)(8) shall be considered non-trivial for the purposes of establishing that a defendant’s design is not substantially identical under subsection (b)(11) and section 1309(e).’’.”

This gives me serious pause because what I really want to know is what is defined as ‘trivial’, and who gets to make that decision?  Does this mean that the placement of graphics or prints are regarded as ‘trivial? Or are they nontrivial?

Are changes of materials considered to be trivial or nontrivial? What exactly is being protected here with this Bill? Is it changes of seam placement, overall look and feel, materials, graphics, prints, trims, types of sleeve, neckline, hem length? Is it trivial or nontrivial to take the same dress body you saw on the runway, slightly change the cuff and collar, change the materials and colors, and the hem length?

The thing is, as any technical design knows, designs often have to be changed (slightly to a lot) after you get them from your line designer. The reason you have to change them is to make them manufactureable by your factory facilities. Not all factories have the same abilities/machines/etc, so it’s your job, technical designer, to develop your spec pack so that your factory can manufacture the line designer’s design to your company’s first cost requirements. This may mean moving seams, straightening out a seam, removing a seam, changing cuffs, collars, changing trims, knocking out colors, changing techniques, and so on.  Are these trivial or nontrivial changes?

And I really want to know who will be the defining body that determines what is a trivial versus a nontrivial change.

For example, I had a style of mitten in my design repertoire that was wildly popular. I did that basic body in many colors, materials and with various insertions and applied trims. The mitten body style was the same (I used the same line art to start with every time) but according to our sales force, each change to that body made it a new style.  To the factory and production team, a material change was non-trivial, so that I might have 5 styles all built off the same mitten body, but run in 5 different textiles. To the untrained eye, looking at all five mittens all made up in the same shade of pink, they would largely look like the same mitten.  Or maybe I changed the lining material – this was also regarded as a nontrivial change and was a new style. It was nontrivial because every change made changed the first cost of the mitten style.  This definition of nontrivial makes sense, it’s a bottom line decision.

What is going to be trivial versus nontrivial in this Bill?

There’s no clear understanding of that, and to me that’s very scary. It means that whoever has the most money to pay for lawyers (and to perhaps contribute to select political campaigns) will end up determining what is ‘nontrivial’ and what is ‘trivial’. And you can bet that the deep pockets will determine that everything is nontrivial and hence protected.

It follows then that S3523 will either force massive innovation in Fashion, or else it’ll be a massive wet blanket on the industry. My bet would be the latter, because if this bill passes, it means more the possibility of increased law suits and the eventual reduction of the kinds of styles and numbers of styles being produced, by fewer number of fashion houses because small designers will simply not be able to afford infringement lawsuits. The bill may give insurance companies a happy little bonus, though, because odds are they will come up with some form of malpractice insurance.