I'm copyrighting Frist Post, right here, right now!

I'm sick of asshole copycats like Al eating my lunch. I'm the innovator, I take the risks! I should have the profits!

Um, there are already *design* patents.

I've got to admit I am somewhat sympathetic to this. 70-years NOT, A few years.. maybe. Without some form of IP rights, a LOT of the white collar design jobs (fashion, computer software, etc.) will be offshored. The trend in manufacturing has been first to make the simple stuff elsewhere, while making the complex stuff here. Now, that has progressed to doing the design work here and not making anything at ALL here. Well, if the design work goes away, what will this country DO?

Schumer's made a career of extracting money from rich people who like Democrats. You can find such people in Hollywood, the fashion industry, and elsewhere in the commercial arts. They meet him at the expensive parties and tell him what they want, and he gives it to them. That's why the Democratic base doesn't like him much; he's not our guy.

Oh, and many fashion designers look at what's on the street or in various ethnic communities and copy it. If Schumer's law passes you'll see plenty of folk art and traditional wear become legal property of the fashion houses.

Schumer is da man!

What next? Pizza recipes?

I remember reading something once that the inability to copyright designs had actually been good for the fashion industry because the designers had to keep coming up with new ideas all the time.

Maybe it was good for the industry but personally I would welcome a slow down in design changes. Not sure copyright is the way to go though.

As with the entertainment industry, some teenager's giggling ass is not "intellectual property."

This does not mean, however, that the foreign policy community should assume that I place no value on the giggling asses of teenagers.
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I'm going to copyright the male brief.

I have to think about the flip side. It seems like high end designers are frequently taking ideas from popular and traditional sources. In today's world, the flow of fashion is frequently down to up. So are these fashion companies going to start acknowledging what they are ripping off?

I invented the spaghetti strap and I want what is due to me.

The Prairie Angel

So are these fashion companies going to start acknowledging what they are ripping off?

Yeah. Just like the music industry.

As much as it pains you, copyright on fashion design is not a bad idea. The far bigger problem is the long-term extensions of the copyright term, which, despite the Supreme Court ruling a couple of years ago, is directly contrary to the Constitution. The SC relied on the difference between repeatedly extending the limit without ever actually saying that it is indefinite and actually being indefinite. It's horseshit, but it's the law, at the moment.

Wow. Everyone was right. The Democrat's really do suck.

My apologies to Ralph Nader. I thought you were just being a dick.

I thought Disputo was right -- there is design protection. The problem is enforcement. Take the design, change some insignificant stuff, voila!, new design!

And the litigation, ouch! I've seen argument in court comparing the teddy bears on one pair of kids pajamas with the teddy bears on another. I remember another case that was causing a judge I knew bad headaches -- lengthy arguments about whether the pose of the athletes on athletic trophies was the same -- angle of the tennis racket, etc. The only ones who make any money off this are the lawyers.

My apologies to Ralph Nader. I thought you were just being a dick.

Well, you know what they say -- even a broken dick is correct twice a day....

Doc -
I agree with your point, but there's another problem with it - not just the time-scope problem (by the way, the original constitutional mandate was "for a limited time" which meant 7 years, + one 7 year extension").

There's also the idea-scope problem. Which is notoriously difficult to regulate. For example - look at my Frist Post above. What if I instead, decide to patent all FIRST POSTS. Now, imagine I am "Giant MegaConglomoCorp X" with an army of patent lawyers who take patent clerks out to lunch, strippers, maybe a line of coke or two. They'll agree to it, and then from that point on, anyone who posts first to any blog has to pay my company a licensing fee.

This has happened in the past - for example - Amazon dot com patented something called "one-click-shopping". The idea is obvious, and there were plenty of examples of prior art, and when they applied, there was an uproar of dispute. It was granted. It was challenged, upheld, appealed, I think it's still working through the courts, with a very slim chance of actually falling through. In the meantime, innovation in online shopping website design has STOOD STILL for five years because of this patent.

In general - such patents are a very bad idea. There are Guidelines, but it's very difficult to set in concrete, hard rules by which scope is defined. Guidelines call for very specific definitions on patented devices - but now there are so many overly-broad submarine patents out there, software engineers are coding through a minefield of potential lawsuits. You wonder why software sucks? This is the reason. The patent law system is in the pockets of the big corporations. It protects the incumbency of the large monopolies, and inhibits innovation and new players.

The Democrat's really do suck.

The "Democrat's" what? It appears to have been plural, but there's no telling what it was.

And to which Democrat were you referring?
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It is a horrible idea.

http://www.publicknowledge.org/node/812

As a designer -- I have to say that cheap knockoffs does hurt us. And it should be stopped. Designers get more protection for their work in Europe and they (perhaps as a consequence) have a more robust design community in many ways. We put as much effort into our creations as authors or software developers -- and they are singularly ideas that should enjoy some sort of protection. Not just fashion designers, but also architects and other graphic designers. If copyrighting one form of creation is important (words, music, software) than its equally important to other forms. If it doesn't work for design (or you think it doesn't work for design) than we should bag the whole idea entirely.

they are singularly ideas that should enjoy some sort of protection.

They do enjoy some sort of protection -- trademark and design patent protection.

A truly terrible idea. Good grief, when will people begin to realize that a very large percentage of regulatory schemes (and I'd label ip protections as such) has very little to do with protecting consumers?

Of all the goddamn things to piss away Congressional resources on, this come close to taking the cake.

DC1974;
There is another form of IP that protects you from Cheap Knock Offs. It's called the TradeMark. (also subject to rampant abuse).

When design is outlawed, only outlaws will design.

I don't understand why existing copywright law doesn't apply. This says it does. There's something here that doesn't meet the eye, or the link (a lawyer's website) is wrong.

Disputo -- "trademark and design patent protection." Patent protection applies, I think, only to functional or utilitarian design. And any stylistic design that has a function can't be trademarked or the subject of "trade dress." I think. It's very confusing. But I thought copywright applied to distinctive designs.

DC1974, you are confused as to the purpose of intellectual property protection. It's purpose is not to protect the livelihood of designers, be they fashion designers or pharmaceutical designers. It's purpose is to insure a profitable market for innovation, thus benefitting consumers. There is not a shred of evidence that there has been a deficit in innovative fashion design as a result of not allowing such designs to be copyrighted, therefore there is no legitimate reason to allow such copyrights.

Heck, a pretty decent case can be made that protection for intellectual property in the realm of pharmaceuticals has been extended past the point which strikes the optimum balance between a market for innovation and price competition, and thus patent lengths on drugs should be scaled back, but that is another topic.

Disputo is right. The law provides for "design patents" which are akin to trademarks, except that design patents expire, while trademarks do not, as long as they are in use and defended by the holder.

I don't think design patents have been used in generations, but the idea is really not completely crazy, if you accept the minimal premises of intellectual property as they apply to common law trademarks.

FUCK COPYRIGHT LAWS.

Really at this point I go into Black Rage when they talk about extensions.

Look, it seems clear that artworks, like the works of Joan Miro, are protected by copyright. Aren't clothing designs? If not, what's the difference?

Well it might open up a new avenue of employment for graduates of fashion school. MFA JD anyone?

This verges on the ridiculous, as fashion designers crib from each other all the time. Does this also mean that the estates of designers past will be able to sue current name designers who borrow from collections of the past?

B, that is hilarious! Just like lawyers who specialize in malpractice that are MD JD

OBF, I understand your point. I'm confusing "utilitarian design" with "stylistic" design IP.

Yeah, unless the great great grandchildren of some budding Billy Joel can cash a royalty check, we may well be deprived of a new kind of "I Love You just the Way You Are", and what a tragedy that would be.

This country has gone insane. The purpose of copyright is not to make sure people can make money off of their ideas, it's to benefit the people by providing incentive for creative works.

Frankly, we get all of the benefit we're going to get out of the fashion designers already.

Making a profit is now enshrined in the law above free speech.

I actually run a small fashion accessories company and let me tell you this is long over due. The way the fashion food chain works right now is the smaller independent designers come up with the new designs. Which they then sell to independent boutiques. Then the big retailers walk the fashion shows, ask for samples. Maybe even place a small order. Then send your stuff to China to be copied (some times even just making molds right off the original piece). Then it shows up in their stores at less than you sell wholesale, destroying the market for the product you designed. I'm sorry but this legislation will mostly help small designers and boutiques.

An example we had an earring that was a huge hit for us. Now cheap imitations are showing up in H&M and Target for 1/4 of the price of ours, and of course sales are falling.

There however needs to be limits as to what qualifies as a copy. You shouldn't be able to copyright a certain "look" or style, just the actual product. Otherwise large companies will use it as a way to tie up the market.

Well, you know what they say -- even a broken dick is correct twice a day....

Shouldn't that be "even a broken dick is erect twice a day"?

Well, if we could patent a dress design is there any reason why we couldn'g patent our pets? After all some of us put in a lot of time developing our pets' personalities.

So ............... since it is obvious that INKBLOT has a very unique personality and has a clearly developed penchant for lazing on the kitchen table, I think that Kevin should patent Inkblot's personality and behavior.

That way, whenever a cat, anywhere in the world, sits or lays on a kitchen table the owner would be required to send Kevin some monetary compensation.

Imagine even if a mere 5 cents a cat squat, how rich Kevin would become. Maybe even enough to be able to fund an INKBLOT FOR PRESIDENT campaign.

David, you make an excellent case for revoking the copyright on Miro's work. I'm all for it.

I'm ambivalent about copyright in general, but can we start with the principal that once the creator croaks, there is no longer a need to compensate the creativity?

I would be sympathetic to fashion having excactly the same protection as writing, painting and photography, if it weren't for that wicked vile seventy years (and growing!) nonsense.

However, my sympathy, even if existing copyright periods were sane, would be contingent on them not contriving new legislation. If they think they're just like the others, then they shouldn't need special law: they could claim their copyright under the existing law. The fact that they think they can't makes me suspect they're not on the level.

If a dress is like a novel, then plagiarising that dress should consist of copying that dress exactly, as plagiarism consists of copying a novel exactly. If they're going to try to claim protection for dresses that resemble that dress, then it's not copyright. JK Rowling cannot sue someone for writing about a boy wizard in a boarding school (luckily for her, as she herself is a poor imitator of better writers: she would have been sued into the ground under such a principle)

When design is outlawed, only outlaws will design.

Excellent. I'm copyrighting the phrase "Outlaw (n.) Design" right now.

I came to say what Will Allen said above, just probably not as well.

I'll support copyright/patent/DRM on fashion if you can convince me that the net effect will be more and better fashion available to the consumer.

My wife spent countless hours shopping, choosing colors and textures, painting, and repainting our dining room until she had it just right. Then our neighbor came over and saw it and simply did her dining room the same way. It's just not fair.

"*Workers* spend countless hours doing and redoing, testing, creating, thinking, and then some *manager* comes along and just takes it [the profits] away," said Mr. Schumer. "It's stealing, plain and simple."

Hmm. By defining anything we want as stealing, we can pretty easily get to "property is theft".

Remember this well, Kevin. A few months ago you were telling us all how copyright infringement was "theft", screw the technicalities. See what happens when you allow for sloppy thinking and concede the basic point to evil evil people?

Oh, and to those who thing design patents are the way to go, We have 300 different styles, do you think we can pay the $5-$10K each it takes to go through the patent process for each of them. I think not.

As for trademarking, that works great for your name and logo, but doesn't work so well for a bracelet.

I do however agree that the length of copyright and patent has gotten completely out of hand. Something around 10 years long enough to allow the originator to profit, but allow others to innovate after that. Longer than that is just rent seeking.

Adventuregeek, the very fact that the small independent designers are still coming up with the designs, despite the inability to copyright, proves that the copyright is not needed, in order for the public to benefit from new designs. The primary purpose of intellectual property protection is not to protect creativity. The purpose of intellectual property protection is to benefit the public by making creativity profitable. Unless you can show there is a real deficit in creativity in the fashion industry, there is no reason to allow copyright on fashion.

"70 years"?

Ever since Disney bought an extension on their Mickey Mouse property from congress, copyright in America has lasted *95 years*.

So, this is to stop Walmart from selling cheap knockoff's isn't it? Can't they afford lobbyists to stop this?

Yeah, unless the great great grandchildren of some budding Billy Joel can cash a royalty check, we may well be deprived of a new kind of "I Love You just the Way You Are", and what a tragedy that would be.

Thanks for that example from 20 years ago. Leave the house much?

I'm ambivalent about copyright in general, but can we start with the principle that once the creator croaks, there is no longer a need to compensate the creativity?

Ah, we do have disagreement.
What economic incentive would there be for interesting old people to write their memoirs?
I'm not saying one need provide 99 years of incentive or anything, enough to fund the next generation is probably sufficient.
Ulysses S. Grant apparently wrote his memoirs for exactly this reason.

I typed "20" instead of "30" up there. Joke's on me! And Allen of course, as usual.

Well, the Joel tune is closer to thirty years old, and I chose it for that reason, 'cuz for all I know that shlockmeister is about ready to have great-grandchildren.

Fine, Allen, if you want to make it the creator's death or 20 years, whatever comes last, that's fine by me, given it still would be a definite improvement. Grant aside, the human ego being what it is, I suspect we would suffer no measurable shortage of memoirs.

If a dress is like a novel,

Well, the paradigm is like "land" - an idea is like a piece of land, and you get a temporary grant of ownership for it, like you do in the UK, from the crown for 99 years.

So - those terms are easy to define.

What's not easy to define is - how big this piece of land is, how high up do the rights extend, how far beneath the surface, how far out to sea do oceanfront rights extend, etc. (same problems we have with REAL land rights! - only you can actually measure that stuff with a ruler if you want to).

So does this designer get to copyright black dresses with a little white "CK" logo on them, of a specific cut, and specific fabric - or do they own ALL black dresses? And do they own leather pants? What about pleather? vinyl? naugahide? etc.

Other designers are going to have to sit on their asses and do nothing, because they're going to be in the dark about what they can and can't get away with without being sued, and it will necessarily come down to who has the most expensive lawyers, and it's already started from who has the most expensive politicians.

This is exactly why when people like Hillary Clinton get up there on cameras and tell us with a straight face that all that lobbyist money doesn't mean anything - they need to be kicked to the curb. With a spiky, steel-toed boot.

Oh, and to those who thing design patents are the way to go, We have 300 different styles, do you think we can pay the $5-$10K each it takes to go through the patent process for each of them.

Design patents are much easier and cheaper than utility patents. You should be able to find a lawyer who will handle a design patent app for $500, which is peanuts if the big guys knocking off your designs are costing you as much as you claim.

Schumer can be bought for a handful of sheckels. This is just more proof.

I'm sorry but this legislation will mostly help small designers and boutiques.

Who cares? That's not a good enough reason to infringe on freedom.

Yup, good luck wit dat. They do already have quite a bit of protection--try copying the Levi back pocket stitching and see what happens.

I'm somehow reminded of Harley's multi-year effort to patent their exhaust note. Now there's a waste of the courts' time.

Problem is not he prevention of being knocked off, the problem is enforcing the violations of knocking off products and the return generated by knocking off products.

My company has almost 65 patents both utility and design patents (contrary to some here, design patents DO NOT COVER STYLING, FASHION OR GRAPHIC APPLICATIONS) in addition to ten different trademaks and copyrights.

Nearly every one of our patents has been violated in some form or another over the past five years. Aside from sending a cease and decist, suing the violators outright, compelling them to pay liscensing, or striking a deal with their distributors to drop the product, there is nothing else we can do to prevent them from "Borrowing" and profit from that "Borrowing"

Especially when the one doing the "Borrowing" is a large multinational retailer/manufacturer/band of pirates with a legion of Counsel and an abyssmal amount of money who can tie up and disptue every claim as spurrious.

Their ROI on the "Borrowed" products and features is huge. Its cheaper to Knock off and pay a lawyer to defend it than it is to invest in R&D resources to create innovation.

Sen Schumer - I beleive that what you meant to say is Patent and Trademark. And even then - lame, lame, lame.

"...."Designers spend countless hours doing and redoing, testing, creating, thinking, and then some counterfeiter comes along and just takes it away," said Mr. Schumer. "It's stealing, plain and simple."

File a design patent. If you can't get a design patent on your design, then tough shit you probably deserve any "protection."

Ti the extent Schumer states that the fashion industry needs copyright protection in order to thrive, he is acting as a shill for fashion industry corporations.

Fuck him. Fuck them. Fuck that.

http://tinyurl.com/2mgl54 (typical design patent)

Disputo: Um, there are already *design* patents.

The quoted part says "copyright." To get a patent is a years-long and expensive process. To establish a copyright, you just send two copies and a form to the copyright office, and if you're first, you get it.

A discussion I had with an IP attorney some years ago indicated that fashions could, in fact, get copyright, if they deserved them. As could the style of an auto body. The trick is first, proving what you did is really, in fact, original, and that the the person you are suing has, in fact, copied it.

There's a whole other regime of IP law that goes under the name "trade dress" as well. If you can show that Brand X's packaging is meant to confuse consumers, or has the material effect of confusing consumers, then that's also actionable.

IANAL, so I might have got some stuff wrong, but that's the general drift of my understanding.

This is a fundamental misunderstanding of the fashion biz. The whole industry is dependent on knock-offs. It forces the rapid change of new styles, as soon as a high fashion product becomes widespread through knockoffs, and anyone can afford it, it becomes unfashionable and unexclusive, so the designer has to come up with a new design. And thus the cycle of new fashion and new purchases is accelerated. Without knockoffs, everyone would wear the same things for longer times, and designers would make less money.

What's the purpose of such stiff IP, to reinforce the class system? Only people who can afford real Louis Vuitton or Hermes Birkin bags (which cost thousands of dollars) should carry them. Everyone else should haul their belongings in trash bags.

/not

The whole point of fashion is that it's short-lived. No one wants to be seen in last season's stuff, much last century's.

Ti the extent Schumer states that the fashion industry needs copyright protection in order to thrive, he is acting as a shill for fashion industry corporations.
Fuck him. Fuck them. Fuck that.
Posted by: And fuck you on August 9, 2007 at 3:49 PM | PERMALINK

. . . in both eye-sockets.

The jobs already are offshored. The damage is done. This is irreparable.

Patents and copyrights no longer protect original inventions, but merely add many layers of difficulty and litigation into bringing a product to market.

Nothing currently stops a company from breaking copyright or patent law - the costs are incurred later, after the profits have been taken home by shareholders.

The laws need to be designed to protect regardless of monetary value, and for set periods based upon the type of product (commercial, personal, invention) and type of infringement (copy, reverse engineer, parallel development) and we really need a patent/trademark/copyright office which is open to the public and can understand previous art.

The jobs already are offshored. The damage is done. This is irreparable.

Patents and copyrights no longer protect original inventions, but merely add many layers of difficulty and litigation into bringing a product to market.

Nothing currently stops a company from breaking copyright or patent law - the costs are incurred later, after the profits have been taken home by shareholders.

The laws need to be designed to protect regardless of monetary value, and for set periods based upon the type of product (commercial, personal, invention) and type of infringement (copy, reverse engineer, parallel development) and we really need a patent/trademark/copyright office which is open to the public and can understand previous art.

FYI, here are the House and Senate versions of the Design Piracy Prohibition Act that Schumer was talking about.

people don't buy "real" louis vuitton or hermes birkin for the design. they buy them for the label and what the label says about them: i've got money to burn.

I think I remember something in the Constitution about "useful" arts...

All designs - including fashion - have copyright protection as soon as they are published anywhere. Copyright is fairly worthless as every writer, artist, designer, songwriter, and other creative producers have sadly discovered. It's simply not financially feasible to seek legal recourse for the small sums involved.

We hate to see this, but Schumer has feet of clay...

Copyright can protect some aspects of fashion design, but not others. If you design a new shirt style, you cannot protect the shirt design under copyright. Under copyright law, an article of clothing is functional no matter how impractical it is. You can copyright, however, any art work incorporated into the design. This includes any fabric patterns not in the public domain. Basically you can't copyright that black mesh-knit shirt with a pink fur collar, but you can copyright a pattern printed on the shirt.

Adventuregeek: I don't understand your complaint. Copyright law does protect the nonfunctional aspects of jewelry design as 3D works of visual art, and such copyrights are not unusual. Yurman Design, Inc. alone owns over 40 copyrights for jewelry design. So if your works are so unique that they merit copying, they are likely eligible for copyright protection. Here is the Copyright Office's requirements for registering works of art: http://www.copyright.gov/circs/circ40.pdf.

Disputo, David in NY, Bruce Wilder:

Disputo runs with something that "sounds right" and the other two echo some details without realizing that the point is irrelevant.

Trademarks cannot be used for fashion design protection--Scalia made sure of that in a WalMart case. WalMart--along with other discounters--are notorious for low-quality cheap knock-offs. We may all be for "the masses" getting access to high fashion, but I loathe to be making WalMart into some sort of Robin Hood. They are in the business to make a quick buck--and ripping off other people's fashion designs is one way to accomplish that.

Design patents do in fact exist and are used with some frequency--obviously, not as frequently regular patents. The problem is that, despite the name, they are not usable for fashion design. Take a closer look at the design patent regulations and you will know exactly why.

Copyright protection actually makes the most sense. Of course, it would be ideal if it were limited--not just because Congress has abused the power to extend copyright terms beyond any reason, but because a dress is not a book or a song or a film. Each requires a different sort of protection, but Congress is too lazy to worry about such things and simply granted what their donors wanted by repeatedly extending the protection.

Buck:

I agree with your larger point that copyright protection makes the most sense to protect fashion if you were to insist on such protection, but have some quibbles.

First design patents can be used to protect a specific design. It simply is not practical to use if you are designing a full line of clothing because a design patent is limited to an object. Of course, because fashion design tends to either recycle old fashions or borrow from "The Street," a designer may have difficulties proving novelty.

Second you overstated and understated Scalia's holding in the Walmart case. The overstatement is that trade dress can be used to protect a product design, but the designer must prove that consumers perceive the design to signify the goods' producer rather than as decoration. This is a difficult hurdle, and practically the majority of product designs will not qualify for such protection. The understatement is that the Walmart applies to any product design, not just clothing.

Gives whole new meaning to the exclamation, "OMG, you're wearing my dress!"