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UNDER THE LABEL

The new pirates

Who owns a shape, a cut, a style? A bill that would protect designs has the fashion industry taking sides.

November 11, 2007|Emili Vesilind | Times Staff Writer

The vendors on Santee Alley are going underground with the good stuff -- the $300 knockoff designer handbags so close to the real thing, they could fool an Hermes salesgirl.

Most of the bags displayed out in the open on downtown L.A.'s most infamous retail street (the No. 1 hub for counterfeit fashion goods in the U.S., according to the LAPD), are half-hearted, vinyl versions of "It" bags, crafted on the cheap in Chinese factories. And contrary to popular belief, these bags -- bearing comical labels such as "Prawa" (Prada) and "Channel" (Chanel) -- are legal to manufacture and sell. They aren't, under current laws, considered counterfeit goods.

"If there's a copy of a Chanel bag that has a logo that's double-Os instead of double-Cs, we can't do anything," said Rick Ishitani, one of the five detectives on the Los Angeles Police Department's anti-piracy task force. "But once the vendor cuts the Os into a double-C logo, that's a violation."

Under the federal Copyright Act of 1976, the line between design piracy in fashion (co-opting the cut, shape and silhouette of an item) and counterfeiting (faux goods posing as designer merchandise) is razor-thin. Only artwork is protected: brand labels, logos, original prints and embroidery. The patterns -- or blueprints -- for garments and accessories are not. But many in the fashion industry consider the classifications ludicrous and are trying to have the law changed.

"There is no counterfeiting without design piracy," designer Diane von Furstenberg said in an interview at her Beverly Hills estate. "It's counterfeiting without the label."

As the president of the New York-based Council of Fashion Designers, a nonprofit trade organization, Von Furstenberg is backing a bill pending in the Senate that would amend the Copyright Act. Dubbed the Design Piracy Prohibition Act, it would extend the protections in fashion design beyond artwork to encompass "the appearance as a whole" (the cut and silhouette) of an article for three years.

Though the bill has garnered strong support from Seventh Avenue, many L.A. fashion professionals have voiced doubt as to whether the bill could really make a dent in design piracy -- or if it will increase litigation in an already hyper-litigious industry.

Indeed, some of Los Angeles' most established fashion companies have good reason to hope the bill falls short. Companies such as Bebe, ABS by Allen Schwartz and Forever 21 regularly cull design "inspiration" from New York's runways, and if passed, the legislation may greatly curb this practice. Additionally, many of the West Coast's biggest fashion exports fall into the denim and sportswear categories, genres that are less concerned with silhouette and shape than they are with flashy branding and artwork -- elements already protected under current laws.

But if passed, the bill could profoundly alter the way trends trickle down in the marketplace on both coasts. Last year's ubiquitous tent dress, for instance, made its debut on the runways, but by early this year, versions of it were seen in every level of retail. Would there have been so many to choose from if a few top-brass designers had registered their takes on the design early on?

Von Furstenberg, for one, said the bill wouldn't restrict designers from latching onto major trends in fashion, only deter them from copying looks verbatim. "It's like locking your door," she said. "Once people know you have locks, they won't try it."

Designers would be required to register garments with the U.S. copyright office for them to be protected, and all designs in existence before the passage of the bill (such as bell-bottom jeans) would be considered public domain. The bill, sponsored by Sens. Dianne Feinstein (D-Calif.) and Hillary Rodham Clinton (D-N.Y.), among others, is expected to come up for a vote early next year.

The U.S. is one of the only Western nations that doesn't protect the overall design of garments and accessories. (In most of Europe, a garment doesn't have to be registered for its cut and silhouette to be protected under copyright laws, though registering can afford up to 25 years of protection against design piracy). And other creative mediums here, including music and film, are more fully guarded against copyright violations.

Ilse Metchek, executive director of the California Fashion Assn., a nonprofit organization based in downtown Los Angeles, called pattern-making "a craft, not an art. There is only so much you can do with a silhouette, a collar, a drape. For the little designers who have that one great idea and it's knocked off -- well, welcome to the real world, guys. Make another one."

Metchek also cited the potential for more than one designer to conjure up a nearly identical idea within a small window of time. "Then they end up suing each other, depending on who registered it first," she said. "This is not the way the fashion industry works."

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