Testimony of David Wolfe, Creative Director The ... - Public Knowledge

industry. By the time a design is determined to be or not be infringing, the marketplace will have
moved on and new trends will have emerged.
This subcommittee knows well that the content and technology industries are constantly
at odds on issues of infringement, secondary liability, injunctions, and negotiations of licensing
terms. These issues will exponentially complicate business arrangements between designers and
retailers and increase the time necessary to produce new clothing lines and develop trends. With
a copyright in place, many trends that would have developed in the marketplace as it exists today
will never develop, which in turn will remove the incentive for consumers to make purchases.
A fashion copyright would be virtually impossible to enforce fairly because of the lack of
originality in fashion.
As I discuss on page 2, a fashion copyright that grants monopoly to a design and any
design that is “substantially similar” could not be enforced fairly or efficiently because
determining the originality of a design is nearly impossible. Designs that may seem “original”
during a current fashion cycle may be a slight reinterpretation of a previous design. Because
fashion relies on appropriation and merely modifying existing ideas, it would be impracticable
for the government to confer fashion designers a copyright monopoly on a design.
Because defining and determining originality is difficult enough for those who work in
and study the fashion industry; it would be just as difficult for a court. If a court cannot
determine the originality of a design, then how could it fairly determine whether one design
infringes upon another or whether a design is substantially similar or whether a design is
sufficiently original to qualify for copyright protection? Would a court be forced to measure the
width of the lapels on a tuxedo jacket, the width of spaghetti straps on a cocktail dress, the
similarity of pastels of a suit? Or the originality in the length of a skirt, the cut of a men’s
button-down dress shirt, or in the number of straps on a pair of gladiator-style sandals?
A fashion copyright would increase costs for designers and retailers and would decrease
choices for consumers.
A copyright would give designers unprecedented monopolies over fashion designs and
any reinterpretations thereof, which would complicate the business of fashion even more.
Negotiating licensing, the risks—and reality—of litigation and constant internal debates over
infringement and originality would create a higher cost of doing business for designers.
Designers would become more cautious and conservative in their designs for fear of creating a
design that infringes on another. Ultimately, they would have to account for the costs of
licensing and the risk of infringement litigation in their pricing, and pass these costs on to
consumers. The end result for consumers will be fewer choices, higher prices or both.
It is important to note that fashion design is not entirely without intellectual property
protection. Indeed, patent and trademark law offer limited protection for fashion designs. Design
patents protect the ornamental features of an invention that can be separated from the functional
aspects. Few fashion designs meet the qualifications for a design patent, but some areas of the
fashion industry, such as athletic shoes, have been able to take advantage of the protection.
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