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PVLA in the News
Risky Business: Commercial Art, Public Interest and the Shifting Public Domain
By Miriam K. Hohag
“Is this PVLA? Yes, I need a lawyer. I’ve been arrested for stealing a purse—but I’m innocent. Stealing purses is my performance art.”
At Philadelphia Volunteer Lawyers for the Arts (PVLA), we took that call in 2009. After referring the caller to the Defender Association, we marveled at the creative arguments that clients of all socioeconomic and professional backgrounds use to gain access to our fantastic phalanx of pro bono attorneys. But the discussion took a more academic turn: what if instead of stealing the purse for profit, the “artist” purchased the purse legitimately from a professional designer and then ripped it off?
American intellectual property laws have always danced around protecting fashion designers—a counterintuitive fact that the army of ambitious, talented and pro-bono eligible graduates from Philadelphia’s art schools find out the hard way. PVLA receives hundreds of inquiries annually about what creative works are in the public domain—and why. American designers who produce labor-intensive and innovative goods find their work reproduced at free-riding chain stores and are virtually helpless to stop it. If the Innovative Design Protection and Piracy Prevention Act (IDPPPA) passes in Congress this fall, our community of up-and-coming designers may have a new—but equally risky—world to live in.
A truly innovative fashion design would, under the IDPPPA, be copyrightable and protected automatically from substantially identical knockoffs for three years. Designers would have to be careful not to infringe upon someone else’s original and novel design (although due to the high standard, most existing designs would fall in the public domain) unless they can prove that inspiration struck twice. A noncommercial exception is built right into the bill—protecting home sewers who want to wear their own version of Hilary Duff’s couture wedding dress to the Prom this year but don’t want the Council of Fashion Designers of America banging down their doors like the Recording Industry Association of America.
The process behind apparel design and production is indeed similar to that of another commercially leveraged art form: popular music. While corporate production, remakes and sampling make up much of the market, an innovative mind is at the heart of a new hit. Both art forms produce merchandise that allows the consumer to express himself by putting on a persona.
Copyright law rewards and protects—at least in theory—the artists behind the music, but the artist behind the garment is largely at a loss. Clothing is “utilitarian” even at its most absurdly impractical and legal protection is reserved for those who designed the fabric print or the embellished buttons. Charlotte,* a seasoned Philadelphia designer struggling in the current economy, noted that a parallel would be “protecting the drummer who created the backbeat,” but not the singer-songwriter whose melody, lyrics and performance were “the essence of the song.” It does seem unfair.
Informed designers know that brand names and logos are trademark-protectable in the United States, but generally do not protect the underlying design. Patent law does theoretically provide protections for extremely innovative designs, but the prohibitive costs and the unnecessarily long term of sanctioned monopoly is a poor fit for the trend-based fashion industry. For example, by the time hoopskirts would have exited the twenty- or seventy-plus-year duration of patent or traditional copyright protection, nobody would want to wear them.
However, the IDPPPA’s three year protection is enough time to reward the research and development that an innovator sinks into new work by allowing that innovator to get the original product all the way to consumers first, before the knockoffs arrive. Additionally, this breathing room still allows an ambitious creator to profit from satisfying a hungry market with licensed goods at different price points.
Opponents of the IDPPPA emphasize the overall trend-based success of the fashion industry without (U.S.) protection, and point to the seemingly vague standard of “substantially identical” as difficult to apply—despite a strong similarity to domestic trademark language. Other arguments point to the law as only affecting a handful of very outlandish, well-funded designers who have the creative and financial resources to claim its protection. All of these concerns are valid, and the bill may need substantial judicial interpretation to work. Whether this is cause for alarm is up for debate—lawyers seem eager to throw judges under the sartorial bus (maybe it’s the robes?). It may be possible that in the wake of the tech boom and global recession, and in the face of massive counterfeit issues, the United States needs to reexamine –in a narrowly tailored way—how we incentivize the business of home-grown creativity. Trying out the IDPPPA may be worth the risk.
Much is to be said for this creative generation’s gravitation towards open-source, free-downloading remix culture—it spurs innovation in the face of restrictive copyright laws, not because of them. These creators, many living and selling among us in Philadelphia, realistically only experience the brunt of the law if they make enough money to be noticed. Most create for the sake of creation and their remixed work never leaves the garage to be sold in competition with the original. Proponents of a more expansive freedom to share and remix, like Professor Lawrence Lessig, view these works as indicators of an actively participating, creative generation, not as contraband. However, as a decade of music copyright cases have illustrated, nimbler models for protection could be helpful. Perhaps, the argument goes, instead of the extremes of harshly enforcing or completely forgoing copyright, we should redefine it.
For PVLA, this shift in both the zeitgeist and the law isn’t about corporate giants, it’s about entrepreneurial spirit and recognizing the value of innovation in all disciplines. The IDPPPA isn’t perfect, and it may seek to regulate a system that appears to be successful—but it’s worth a shot to bring the U.S. up to international standards. This bill is part of a movement that seeks to redefine concepts like “the public domain”,” fair use”,” noncommercial use” and “originality.” Google has reimagined what a public library could be, and Second Life houses virtual art museums complete with unlicensed copies of artwork. PVLA gets calls every day from creative Philadelphians pushing the limits in their own discipline. The public is questioning what the public domain is and should be, and this legislation sets some narrowly tailored boundaries—at least for fashion.
Where traditional copyright has fallen short, the IDPPPA is really a legislative remix, sampling from the past and turning out an experiment that may alter the emerging creative world. If it succeeds, it could become a pattern for an overhaul: a limited-rights revolution, rewarding only the most creative and punishing the most egregious, opening the rest up for democratic participation.
Stealing a purse and mugging the owner is never going to be legal, but perhaps the business of stealing designs might get a little riskier. Stay tuned for how this might—or might not—be in the best interest of the Philadelphia public.
*names have been changed
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Miriam K. Hohag, Esq. is the Director of the Philadelphia Volunteer Lawyers for the Arts (PVLA) and holds a B.S. in Apparel Design and Production.
PVLA is a program of the Arts & Business Council of Greater Philadelphia specifically dedicated to providing pro bono assistance and educational programs to low-income artists and arts and cultural organizations. For more information about the PVLA program, visit www.artsandbusinessphila.org/pvla.
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Reprinted with permission from the August 23, 2010 issue of The Legal Intelligencer. © 2010 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
