Copying: A Trendy Bill Now On The Hill, Part 2

One of the authors of the paper I cited in the previous post wrote in with more reasons why designers should be wary of, and not pushing for, the Design Privacy Act:

Thanks much for noticing the article and using it in your blog post. I get the sense from your posts that you are worried (as we are) that the designers pushing this bill don't know what they're getting themselves into. I think that's right -- in particular because they don't have a good understanding of copyright law, and as a result they don't understand how deeply copyright, if it applied to fashion, could interfere with their creative practice.
I've spoken with a number of designers who simply don't understand the difference between trademark knockoffs and design appropriation. And they don't understand that copyright doesn't just prohibit carbon copies, but anything "substantially similar" to something that's come before. Copyright's "substantial similarity" standard has been interpreted in a way that reads out the word "substantial", and that's a problem that the designers are going to have to grapple with in their bill. They are trying to do so by changing the standard of liability in the bill to "close and substantial", or something along those lines, but that doesn't give me much comfort, because judges who don't understand the fashion industry's creative practices are going to be sitting in judgment over the legality of trend-making, which almost always involves articles that are "closely" similar.

If you're interested, Kal and I have a short essay on the "substantial similarity" issue: "Where IP Isn't."

Again, my emphasis above. Copyright is a sensitive issue. It's easy to get emotional about seeing the work of other people get "ripped off." But the realities of this bill are a very different thing. Are you ready for a judge to decide what's a close copy -- as in a trend, say wedges -- and what's copyright infringement? There are some good examples in the paper he links to above. We're not talking about counterfeit goods, they're already illegal, but protection of something as seemingly generic as a shirt-dress.

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