Fashionably Late: The Waiting Game for Copyright Protection

Copyright protection for this blog post I’m writing? Check. Copyright protection for the music I’m listening to? Check. Copyright protection for the clothes I’m wearing? No. It may be hard to believe, but in the United States, fashion design is one of the only creative arts not protected by law. And now more than ever, designers in America are feeling its effects.

As the reach of technology continues to grow, fashion designs can be pirated with the click of a button.  Within moments of a runway show or red carpet event, digital photos are posted on the Internet, accessed by factories half a world away and produced into cheap knockoffs in record time. Without copyright protection, designers often have no legal right to stop sales of the fakes in brick and mortar stores, nevermind online.

A white paper written by my Stern + Associates colleagues addresses the importance of online reputation management in relation to such counterfeiting. Scammers will often employ search engine marketing (SEM) abuse tactics to steal sales from official websites; when customers search for the authentic product, ads for websites that sell knockoff merchandise appear, leading to consumer confusion and dilution of the brand. Whether you’re a designer, corporation or thought leader, you don’t want to be left without a remedy, vulnerable to the devastatingly elusive culprits. The majority of online ad distributors, including Google, will not manually remove such advertisements without a legitimate copyright infringement claim.

Recently I visited Parsons The New School for Design to speak with fashion students about a bill pending before Congress that would grant limited copyright protection to fashion designs. Titled the Innovative Design Protection and Piracy Prevention Act (ID3PA), the bill proposes that new and unique designs be protected against substantially identical copying for a term of three years. Fashion industry heavyweights have been lobbying both sides for quite some time: in fact, my first writing on this subject was over three years ago when a prior version of the bill was pending. While opponents cite fears of stifled creativity, supporters make a valid argument in that would-be offenders will be forced to develop their own new and unique designs or hire budding designers they might have copied. But as stated in the New York Times, further debate is sure to ensue.

In the meantime, do your part to combat fakes by not only avoiding too-good-to-be-true knockoffs, but also addressing your own business’ online reputation management by reviewing Stern’s latest research here.

About Kristen Soehngen Karp

Kristen’s role spans the entire agency, giving her a unique opportunity to collaborate with multiple teams and clients on business and legal affairs. As in-house counsel, she provides legal advice regarding commercial contracts, marketing, intellectual property and more. She also drafts and negotiates contracts, including advisory, publishing, talent, confidentiality and new clients. Beyond legal issues, Kristen is intimately involved in client relations, and leverages synergies between their expertise and our agency’s connections with leading global organizations, corporations, publishing houses and the like. Kristen’s guilty pleasures include gummy bears, Amazon prime and Montauk summers.