Will design protection ever be in fashion in the US?

In "Why Imitation Is the Sincerest Form of Fashion", Kal Raustiala [yes, it is an anagram of 'Australia'] and Christopher Sprigman, writing online yesterday for the New York Times, take issue with Senate Bill S.3728 (the Innovative Design Protection and Piracy Prevention Act) which proposes, among other things, "to amend title 17, United States Code [that's the US copyright legislation], to extend protection to fashion design".

The Bill is short and, without the benefit of other legislation to provide its context, largely unintelligible since it consists principally of amendments to existing law. Messrs Raustiala and Sprigman don't like it. They say:

"... New York’s senior senator, Charles E. Schumer ... introduced legislation that would rewrite copyright law to cover their designs. But his bill could hurt the fashion industry more than it would help, and raise consumer prices along the way.

It strikes many people as strange that fashion designs are not already protected against copying. ...

But there is a good reason that fashion designs have never been protected by copyright. Some designers have lost sales to knockoffs, but the copying of designs has not been a serious threat to the survival of the industry. To the contrary, much of the growth and creativity in the industry depends on imitation.

Why is that? Because of something we all know instinctively about fashion. As Shakespeare put it, “The fashion wears out more apparel than the man.” That is, many people buy new clothes not because they need them, but only to keep up with the latest style.

Right: Fashion in Shakespeare's time -- more real than apparel ...?

Without copyright restrictions, designers are free to rework a design and jump on board what they hope will be a money-making style. The result is the industry’s most sacred concept: the trend. Copying creates trends, and trends are what sell fashion. Every season we see designers “take inspiration” from others. Trends catch on, become overexposed and die. Then new designs take their place.

This cycle is familiar. But what is rarely recognized is that the cycle is accelerated by the freedom to copy.

Mr. Schumer’s proposal ... takes a very narrow, and therefore less onerous, approach. It would protect only “unique” designs — those that are truly new and distinguishable. And only “substantially identical” copies would be illegal.

Some designers, believing that every clothing design is a reworking of something we’ve seen before, question whether the proposed law would matter. Indeed, if the legislation were applied exactly as it’s written, with its stringent standard of uniqueness, it would matter very rarely.

But the greater risk is that once it’s in the hands of lawyers and judges, such a law would expand in a way that harms many designers and consumers. Plaintiffs’ lawyers would make creative arguments, and judges would tend to interpret the bill’s language expansively. This has been the pattern in copyright for decades. Indeed, lawyers (and those designers who could afford them) would be among the biggest beneficiaries, as disputes would likely erupt into expensive, time-consuming lawsuits featuring designers squabbling over ownership of allegedly unique styles.

In any case, a legal mechanism already exists to protect a truly novel design: a patent. But instead of a specialized federal agency determining what is novel, Senator Schumer’s bill would require that the novelty be assessed by a judge, whose sole experience with fashion might consist of a semi-annual trip to a department store.

To make matters worse, the bill would allow plaintiffs to pursue the wealthiest manufacturers and sellers of fashion. Retailers, for example, could be held liable for any copies they sold. Unlike earlier proposals, Mr. Schumer’s bill contains no requirement that copyrighted designs be registered so that retailers and other designers are put on notice.

While many designers have suffered financial losses in the recession, the American fashion industry as a whole has enjoyed steady growth since World War II. Today, apparel businesses in the United States take in more than $300 billion a year and employ millions of people.

There’s no doubt that some designers suffer losses from copying. But Mr. Schumer’s bill is a cure that would be worse than the illness. With copyright protection fashion prices would rise, and the creative cycle would slow down. ...".

Class 99 is struggling to comprehend how the fashion industry in Europe has ever managed to survive at all, let alone develop, with all those meddlesome, inconvenient, unnecessary and, well, unfashionable laws to protect clothing designs. Can any reader offer some enlightened comment on the subject?