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A fashion bill pending in Congress could dramatically increase apparel lawyers’ work — and make it a lot harder for ordinary consumers to stay in style. The Design Piracy Prohibition Act, S. 1957, would allow designers of clothing, shoes, purses, and other apparel to copyright their designs — not just trademark their logos — for three years. That could lead to a flood of litigation as designers move to sue retailers who sell knockoffs intended for the mass market. And even as they acknowledge the potential business windfall, some fashion lawyers feel so strongly that they’ve joined an effort to stop the bill. On one side are those like Douglas Lipstone, a shareholder in the Los Angeles office of Buchalter Nemer. Lipstone is working with the California Fashion Association, a Los Angeles-based industry nonprofit, to oppose the bill. He argues that fashion is all about inspiration and that stymieing the trickledown process would hurt both the creativity and the economy of style. But high-fashion designers — and their lawyers — say they’re tired of cheap copies that take money out of their pockets. Current law only helps them if a knockoff carries a counterfeit label. They say the bill would force manufacturers to be more creative. “It’s a big deal, and there are emotional issues on both sides,” says James Williams, a Los Angeles partner who leads Loeb & Loeb’s fashion practice. Some say the battle lines are geographic: California versus New York. The New York-based Council of Fashion Designers of America is the industry group behind the bill, which was introduced by Sen. Charles Schumer (D-N.Y.). “It’s not quite like rap music, but there’s a clear East Coast/West Coast rivalry,” says Lipstone, adding with sarcasm, “East Coast designers are the sultans of style, and the West Coast people take those designs and disseminate them to the dirty masses.” WHO INVENTED THE A-LINE? Lawyers opposing the bill say some of their concern stems from the certain difficulties of enforcing it. Since fashion is so ephemeral, it’s going to be hard to determine what constitutes a violation of the act, they say. While some knockoffs are clearly exact replicas, others merely take inspiration from the high-fashion designers. Lipstone goes even farther, calling it a fallacy to claim any designer has personally created a particular design. There’s a finite number of necklines and hemlines, and chances are, whatever the design, it’s been done before. Says Lipstone, “The pendulum is constantly swinging. How many times has the little black dress been invented?” Besides, he adds, fashion is all about inspiration: Just as mass retailers base their styles on what’s coming down the runways in New York, designers in New York often get their ideas from Europe. But Theodore Max, a New York-based partner with Sheppard, Mullin, Richter & Hampton, counters that under the legislation, basic designs that already exist in the marketplace — such as the white T-shirt — wouldn’t be copyrightable. He focuses on the types of behaviors the legislation could alleviate, offering as an example the spate of dresses that emerge the day after the Academy Awards looking strikingly similar to those just seen on the red carpet. “If you’re a smaller designer, and you’re fortunate enough to have someone wearing your dress, it can be dispiriting to have someone knock you off and take advantage of a design that was created with your hard work,” says Max, adding that many of his clients are designers and fashion innovators who support the bill. But Lipstone says it’s a rare consumer who is going to believe the cheap dress at Wal-Mart is really the same as the $10,000 gown they saw on TV. And if the label itself is replicated, he points out, that’s already covered under counterfeiting laws. Whether they favor or oppose the bill, most apparel lawyers agree that it would lead to more litigation. Jeffrey Kapor, another Buchalter Nemer shareholder who chairs the firm’s apparel group, calls it an “attorney-get-rich scheme.” And Williams, the Loeb & Loeb partner, says, “You’re going to see an increase in litigation between legitimate enterprises, not just shady operations.” NEEDLE VERSUS NEEDLE That could leave fashion decisions in the hands of not-so-fashionable judges. It could also squeeze lawyers who represent both high-end designers and mass retailers like H&M and Zara. “For clients in this industry, integrity is a big deal,” Williams says. “It’s hard to advocate for and counsel clients if they know you’re representing clients on the other side of the aisle — even if it’s not a direct clash.” Richard Reinis, of counsel in a Los Angeles office of Steptoe & Johnson, says he worries about the economic implications, especially in California, the home of American apparel production. Lower-end manufacturers like to limit their risk by imitating proven brands. This bill could force them to take more fashion chances, which could have economic costs. “Everyone between Bergdorf and Wal-Mart will be affected,” says Reinis, who is working with the California Fashion Association to oppose passage. And Lipstone notes that the legislation would also cast doubts on the viability of the manufacturers’ inventories, which they use as collateral to finance the next season. “It’s going to crush the apparel industry,” he says. But all this worrying could be premature. Lawyers are divided as to the likelihood that the legislation (or any variation of it) will pass anytime soon. The bill was just introduced this summer, though it has garnered support from prominent senators on both sides of the aisle, including Hillary Rodham Clinton (D-N.Y.) and Orrin Hatch (R-Utah). Lipstone hopes the bill is not making headway. And then he adds, “Jokingly, I say that my deepest, darkest desire is that it passes, because then I’ll have more work than I’ll know what to do with.”
Kellie Schmitt is a Los Angeles-based reporter with The Recorder , an ALM publication in San Francisco where this article first ran.

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