Posted July 31, 2006
Sprigman Urges Congress to Keep Fashion Copyright-Free

Professor Chris Sprigman has teamed up with a group of attorneys, including Stanford law professor Lawrence Lessig, on two cases making their way through the federal courts that could limit congressional power to make copyright laws. Oral arguments recently were held in the case of Golan v. Gonzalez in the 10th Circuit. The plaintiff claims that the Uruguay Round Agreements Act, which took effect in 1996, is unconstitutional. The Act protected works that had been in the public domain for years due to a failure to follow copyright formalities, such as Russian composer Sergei Prokofiev’s “Peter and the Wolf.” (The rights to “Peter and the Wolf” are owned by Disney now.) “If we do win it, this is a significant potential change,” Sprigman said. “A victory here would establish that once a book, a song, or a film falls into the public domain, Congress can’t pull it out and place it back under copyright, where its use is restricted ” The second case, Kahle v. Gonzales in the Ninth Circuit, challenges changes to U.S. law that eliminated formalities, such as registration and renewal requirements, from U.S. copyright. “By eliminating formalities, Congress changed our system from one in which copyright covered relatively few works, mostly with substantial commercial value, to one in which virtually every creative work is subject to copyright regulation,” Sprigman said. The plaintiff’s team argues that these changes to the law burden free speech and must be scrutinized under the First Amendment to assess whether they do so too broadly. Subscribe to News & Podcasts

Testimony

From couture fashion on New York runways to the suburban, mall-dwelling The Gap, shoppers see each season’s fashion trends duplicated from store to store. Part of why designers are able to imitate each other—and able to entice you to buy that cheap but stylish pair of boots—has to do with a rare, and until now, unquestioned industry standard: no copyrights. Congress has responded to calls by groups like the Counsel of Fashion Design of America to change this tradition with the Design Piracy Prohibition Act, now making its way through the House of Representatives. Law Professor Chris Sprigman warned Congress July 27 at a subcommittee hearing that interfering in the $200 billion fashion industry could be a disastrous move.

“This is an industry that has grown up and thrived and has become prominent without any copyright laws,” Sprigman said. In fact, the industry has “developed an ecosystem that depends on copying.”

Sprigman told the House Subcommittee on Courts, the Internet, and Intellectual Property that in 1998 the European Union instituted a law similar to the one Congress is considering.

“European law provides extensive protection for apparel designs, but the law does not appear to have had any appreciable effect on the conduct of the fashion industry, which continues to freely engage in design copying,” said Sprigman. “Very few designers and design firms have registered their designs.”

While the law had little effect in Europe, Sprigman told subcommittee members the same may not hold true for the United States. “Unlike most countries in Europe, which have relatively weak civil litigation systems, we Americans are, for better or worse, accustomed to resolving disputes through the courts,” he said. “Drawing the line between inspiration and copying in the area of clothing is very, very difficult and likely to consume substantial judicial resources.”
Sprigman and UCLA law professor Kal Raustiala co-authored a forthcoming Virginia Law Review article on the fashion industry, “The Piracy Paradox: Innovation and Intellectual Property in Fashion Design.”

The very vitality of the fashion industry derives from copying, the authors suggest. “More often what copiers do is reinterpret and recontextualize fashion,” Sprigman said. “There are a number of design themes that are widely used by rival designers. These trends are what drive consumption of fashion.”

Several industries thrive without copyright, Sprigman and Raustiala point out. Recipes usually aren’t covered by copyright, and yet there is a constant flow of new and interesting recipes. “We see a lot of publication of these recipes, even though others are free to copy them without paying some kind of license fee every time they use the recipe to make dinner,” Sprigman said. Ironically, the first intellectual property system scholars have evidence of was from the ancient Greek city-state of Sybaris, and the system focused on recipes. “The Sybarites relied on a form of IP to incentivize innovation in this area, but we don't. Who's right? My money is on us.”

Although the legislation has momentum, Sprigman doubted whether congressmen would be able to push the bill through both houses before the session ended.

“Extending copyright to cover fashion designs could interfere with an industry’s ability to do its business. Congress should be careful—it should demand real evidence of harm from fashion design copying before it changes the law.”

• Reported by mary wood