In 2007, California-based label, Trovata, filed a lawsuit against chain retailer Forever 21 for allegedly copying its designs. The case involved seven designs sold in Forever 21 stores that were said to look almost identical to garments designed by Trovata. Despite the shocking similarities, Forever 21 argued that they broke no law, claiming: “The design features on the Trovata designs are rather generic and are not protected by copyrights.”
American copyright law does not protect the designs of Trovata, or any other designer for that matter, from blatant copying in terms of structure. Last year, Congress passed a bill that made fake labels illegal, but as long as the Forever 21 knock-offs bore the mark of the Forever 21 brand, the designs were perfectly legal. Now, a pending law in the US Senate, the Design Piracy Prohibition Act (DPPA), would give designers the ability to copyright the structure of a design, making the Forever 21 debacle a cut and dry case. Two major trade groups in the United States, The Council of Fashion Designers of America (CFDA) and the American Apparel and Footwear Association (AAFA), are wholly divided about the advantages and disadvantages of this law, however.
The CFDA aims to promote fashion as a branch of American art and culture, and represents many high end, extraordinarily talented designers including John Bartlett, Cynthia Rowley and Alexander Wang, as well as supporting working designers at the early stages of their careers. The Council also sponsors the Stop Fashion Piracy group, and is an important supporter of this proposed bill, which would give a designer full protection of a design—in other words, any kind of knock off would become illegal. Though that sounds good for designers and customers alike, the DPPA is not without consequences.
“Under this legislation, designers would soon find themselves having to operate under a frighteningly confusing and unworkable legal framework,” argues Kevin M. Burke, the president and CEO of the American Apparel and Footwear Association. The AAFA represents the public masses as opposed to the private elite. Both are equally important and seem to constitute the internal conflict of the industry’s psyche, which is why the debate is so particular. Burke believes the DPPA would hinder a designer’s ability to, as he says: “derive inspiration from a variety of sources in order to explore and promote trends.”
As of right now, designers are as free to take “inspiration”—and quite a bit of inspiration, at that—from a Marc Jacobs dress as they are from a blossoming tree in the springtime. With the new law, however, America would be pulling itself out of the dark ages, and catching up with the global fashion industry’s copyright laws. In Europe and Japan, designers have full protection of their ideas, making knock-offs a matter for the judicial system. Under the new law, clothing designs would become intellectual property like a published book, and taking ownership of someone else’s design would be like claiming someone else’s words as your own. In short, Forever 21 would be guilty of nothing less than plagiarism.
But Burke’s fears are warranted. Intellectual copyright has always been a murky area of study. Who is to say what constitutes the stealing of an idea as opposed to merely seeking inspiration from it? Well, the designers for one thing—they would be given agency in an industry where very little is sacred. The reality of the situation is not quite as black and white as Burke has made it. Inevitably, there will be cases in which the line between inspiration and infringement becomes blurred, but for the most part, the DPPA makes a designer’s ideas protected and prevents unoriginality from taking hold of the industry.
And yet, the non-luxury, fast-fashion industry is built around the repackaging of ideas. And why shouldn’t it be? Are brand name designers truly esoteric and meant only for the economic elite? That may have been the question even a year ago, but America has since fallen from its position of economic stability and superiority, and that elite group continues to wither in number.
What are we left with, then? Could the DPPA result in the collapse of middle class fashion—the downfall of JC Penny, Forever 21 and likeminded stores? Brand name designers have been working their way into department stores aimed at less affluent shoppers for years, and perhaps the DPPA would only increase this. It could force designers to dig deep in their minds and create something original rather than retreat to “what’s hot.” Still, if the Forever 21 court case is any indication, the general public is as divided about the issue as the industry is: Trovata Vs. Forever 21 ended in a mistrial due to “irreconcilable differences” among the members of the jury.