U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

28–908 PDF 2006

A BILL TO PROVIDE PROTECTION FOR

FASHION DESIGN

HEARING

BEFORE THE

SUBCOMMITTEE ON COURTS, THE INTERNET, 

AND INTELLECTUAL PROPERTY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

ON

H.R. 5055

JULY 27, 2006

Serial No. 109–138

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY

LAMAR SMITH, Texas, Chairman

HENRY J. HYDE, Illinois 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

WILLIAM L. JENKINS, Tennessee 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

RIC KELLER, Florida 

DARRELL ISSA, California 

CHRIS CANNON, Utah 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

HOWARD L. BERMAN, California 

JOHN CONYERS, JR., Michigan 

RICK BOUCHER, Virginia 

ZOE LOFGREN, California 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California

BLAINE MERRITT, Chief Counsel 

DAVID WHITNEY, Counsel 

JOE KEELEY, Counsel 

RYAN VISCO, Counsel 

SHANNA WINTERS, Minority Counsel 

(III)

C O N T E N T S 

JULY 27, 2006

OPENING STATEMENT 

Page 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Subcommittee on Courts, the Internet, and Intellectual Property .................................................................................................... 1

The Honorable Howard L. Berman, a Representative in Congress from the 

State of California, and Ranking Member, Subcommittee on Courts, the 

Internet, and Intellectual Property .................................................................... 2

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Member, Subcommittee on Courts, the Internet, and Intellectual Property .................................................................................................... 3

The Honorable William D. Delahunt, a Representative in Congress from 

the State of Massachusetts, and Member, Committee on the Judiciary ......... 5

WITNESSES 

Mr. Jeffrey Banks, Fashion Designer, on behalf of the Council of Fashion 

Designers of America 

Oral Testimony ..................................................................................................... 8

Prepared Statement ............................................................................................. 10

Mr. David Wolfe, Creative Director, The Doneger Group 

Oral Testimony ..................................................................................................... 13

Prepared Statement ............................................................................................. 15

Ms. Susan Scafidi, Visiting Professor, Fordham Law School, Associate Professor, Southern Methodist University 

Oral Testimony ..................................................................................................... 77

Prepared Statement ............................................................................................. 78

Mr. Christopher Sprigman, Associate Professor, University of Virginia School 

of Law 

Oral Testimony ..................................................................................................... 85

Prepared Statement ............................................................................................. 87

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Howard L. Berman, a Representative 

in Congress from the State of California, and Ranking Member, Subcommittee on Courts, the Internet, and Intellectual Property ......................... 195

Prepared Statement of the Honorable Maxine Waters, a Representative in 

Congress from the State of California, and Member, Committee on the 

Judiciary ............................................................................................................... 196

Prepared Statement of the United States Copyright Office, Washington, DC ... 197

Prepared Statement of the American Free Trade Association, Miami, FL ........ 220

(1)

A BILL TO PROVIDE PROTECTION FOR 

FASHION DESIGN 

THURSDAY, JULY 27, 2006

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON COURTS, THE INTERNET,

AND INTELLECTUAL PROPERTY, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 9:13 a.m., in Room 

2141, Rayburn House Office Building, the Honorable Lamar Smith 

(Chairman of the Subcommittee) presiding. 

Mr. SMITH. The Subcommittee on Courts, the Internet, and Intellectual Property will come to order. 

I don’t know what the distraction was out to my left, but we are 

all going to come to order this morning. After our opening statements, then we will introduce our witnesses and proceed with our 

hearing. 

In just a moment, I will announce we are going to be going out 

of order in one way, and I am going to go into greater explanation 

in regard to that in just a second. I recognize myself for an opening 

statement. 

The topic of today’s hearing is not the usual for our Subcommittee. That our audience is unusually well attired may well 

reflect the subject. 

The legislation we are considering today would create a new intellectual property right for fashion designers. H.R. 5055 amends 

chapter 13 of the Copyright Act to extend design protection for articles of clothing, as well as watches, handbags, sunglasses and other 

fashion accessories. 

Currently, articles of clothing are considered useful articles and 

are generally ineligible for copyright protection. The design of a 

useful article is protected under copyright, ‘‘only if and only to the 

extent that such design incorporates pictorial, graphic or sculptural 

features that can be identified separately from and are capable of 

existing independently of the utilitarian aspects of the article.’’

For the first time under this bill, fashion design would be protected by copyright law and copies that are found to be in ‘‘appearance in the whole of the protected design would be prohibited.’’

Design protection legislation has been introduced in Congress 

since 1914. Previous bills took one of two forms: changes to copyright law or relaxation of the restrictions placed on design patents. 

They were based on the limited protection available to useful articles under the patent, copyright and trademark laws. 

2

Advocates of H.R. 5055 say that under current law, fashion designs are generally ineligible for any type of protection, so designers, especially new designers entering the field, easily become victims of those who wish to copy their designs and profit from them. 

Others have expressed concerns that the legislation is too broad 

and would prohibit the ability of designers and retailers to replicate current trends and styles, something on which the fashion industry thrives. 

This Subcommittee must carefully weigh the competing interests 

and the consequences of establishing such a precedent. Our Subcommittee follows the mandate of the Constitution to protect the 

intellectual property rights of our citizens and those who fairly deserve to reap the benefits of their creativity and inventions. 

At the same time, we must also make sure that intellectual property legislation does not have an adverse impact on economic 

growth. When we allow goods to be taken out of the marketplace 

and assign ownership rights to a certain creator, we should look at 

the fairness of doing so and also the impact it will have on the 

market. The economic impact of expanding designer protection for 

fashion designs and the potential burden to the Copyright Office of 

a large increase of registered designs both need to be explored. 

Because the bill mandates that a court, and not the Copyright 

Office, settle disputes over registration of designs, the impact of the 

bill on the Federal court system also needs to be examined. 

We will look forward to discussing these issues and ask some 

questions on these subjects during the hearing today. 

I will now recognize the Ranking Member, Mr. Berman, for his 

opening statement, then we are going to move very quickly to the 

opening statement of the mover of this legislation, the gentleman 

from Virginia, Mr. Goodlatte. 

Mr. BERMAN. Along with Mr. Delahunt. 

Thank you, Mr. Chairman. 

H.R. 5055 would extend copyright protection to fashion designs. 

I am open-minded about this issue and see that the Copyright Office in their written testimony has raised the core question for discussion today. 

[The written testimony of the U.S. Copyright Office is published 

in the Appendix.] 

Mr. BERMAN. Is there a need for this legislation? And what evidence is available for quantifying the nature and extent of the 

harm suffered by fashion designers due to the lack of legal protection for their designs? The global fashion industry is said to have revenues of $784 billion annually. According to the NPD group, total U.S. apparel sales 

reached $181 billion in 2005. California alone produces over $13 

billion in apparel products and employs 204,000 direct employees, 

59,000 indirect workers, and put me through college and law 

school. 

Reportedly, apparel and footwear losses due to counterfeiting have been estimated to be $12 billion annually. The fashion designers are seeking this protection in order to prevent the rampant piracy of their fashion designs, as well as to maintain the incentive 

for designers to continue to develop new, original fashion designs. 

This protection would last only 3 years, allowing original designers 

3

sufficient time to recoup the expenses incurred in designing and developing their fashion works. 

Current copyright law only provides protection to those design 

elements of a useful article that are separable and independent of 

the utilitarian function of the article. Therefore, fashion works 

have traditionally been denied copyright protection on the ground 

that they are considered to be useful articles. Fashion designers do 

have access to some other intellectual property rights both in 

trademark and patent law. 

However, trademark law protects the elements of a design that 

indicate the source of the product, but does not provide general protection for designs. In patent law, there is the potential for design 

patents, but this route of protection often is not practical for designers because of the length of the time it takes before the patent 

issues, as we know, combined with the typical lifespan of a fashion 

design, which is only a single season, maybe 3 to 6 months. 

Further, the design patents require a level of novelty and originality that has generally been held to be higher than that which 

is achieved by fashion works. The fashion industry is unique in 

that it epitomizes the ultimate paradox of intellectual property protection. The arguments I have heard illustrate both sides of the debate. Is a high level of protection necessary to promote innovation? 

Or does the lack of a high level of protection for fashion designs 

actually spur increased creativity in the fashion industry? 

Furthermore, in part as a result of the great speed with which 

fashion trends come and go, new fashions are available in the highend designer stores and in the low-end retail outlets, making these 

fashions available to virtually all individuals regardless of their income level. Will an increased level of protection for designers be at 

the detriment of the retailers and the public? 

In the past, Congress has demonstrated a flexibility in expanding 

copyright laws. For example, providing design protection for buildings through the Architectural Works Copyright Protection Act, 

and providing protections specifically for semiconductor mask 

works and boat hulls. Should we be extending copyright protection 

to fashion designs or are there other areas that we should also consider extending protection to, such as for example the furniture and 

auto parts industries? 

I look forward to understanding the extent of the problem of 

fashion design knockoffs and what the impact is on the high-end 

market. For example, is there a fear of lost sales in this market 

as a result of production in retail stores? 

In addition, I would like for the witnesses to describe what constitutes a design that is substantially similar. Is it an exact copy? 

Is it a mere inspiration of a current trend? And how does one determine if it is something in between? 

I yield back, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Berman. 

The gentleman from Virginia, Mr. Goodlatte, is recognized for an 

opening statement. 

Mr. GOODLATTE. Mr. Chairman, thank you very much for holding 

this important hearing on the Design Piracy Prohibition Act, which 

I was pleased to introduce with my good friend and colleague, ConVerDate 0ct 09 2002 13:56 Oct 17, 2006 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6601 G:\WORK\COURTS\072706\28908.000 HJUD1 PsN: 28908
4

gressman Delahunt of Massachusetts, and also Congressman 

Coble, Congressman Wexler and Chairman Sensenbrenner. 

Article I, section 8 of our Constitution lays the framework for our 

nation’s copyright laws. It grants Congress the power to award inventors and creators for limited amounts of time exclusive rights 

to their inventions and works. The founding fathers realized that 

this type of incentive was crucial to ensure that America would become the world’s leader in innovation and creativity. This incentive 

is still necessary to maintain America’s position as the world leader 

in innovation. 

Most industrialized nations provide legal protection for fashion 

designs. However, in the United States, the world’s leader in innovation and creativity, fashion designs are not protected by traditional intellectual property protections. Copyrights are not granted 

to apparel because articles of clothing, which are both creative and 

functional, are considered useful articles, as opposed to works of 

art. Design patents are intended to protect ornamental designs, but 

clothing rarely meets the criteria of patentability. 

Trademarks only protect brand names and logos, not the clothing 

itself. And the Supreme Court has refused to extend trade dress 

protection to apparel designs. Thus, if a thief steals a creator’s design, reproduces and sells that article of clothing, and attaches a 

fake label to the garment to market it, he would be violating Federal law. 

However, under current law, it is perfectly legal for that same 

thief to steal that same design, reproduce and sell the article of 

clothing if he does not attach a fake label to it. This loophole allows 

pirates to cash in on other’s efforts and prevent designers in our 

country from reaping a fair return on their creative investments. 

Furthermore, the production lifecycle for fashion designs is very 

short. Once a design gains popularity through a fashion show or 

other event, a designer usually has only a limited number of 

months to effectively produce and market that original design. Further complicating this short-term cycle is the fact that once a design is made public, pirates can now virtually immediately offer an 

identical knockoff piece on the Internet for distribution. 

Again, under current law, this theft is legal unless the thief reproduces a label or trademark. Because these knockoffs are usually 

of such poor quality, these reproductions not only steal the designer’s profits, but also damage his or her reputation. It is simply common sense that these creators’ works be protected. 

Chapter 13 of the Copyright Act offers protection for the designs 

of vessel hulls. The Design Piracy Prohibition Act protects designers by amending chapter 13 of the Copyright Act to include protections for fashion designs. Because the production lifecycle for fashion designs is very short, this legislation similarly provides a shorter period of protection that suits the industry, 3 years. This legislation further establishes damages for infringing a fashion design at 

the greater of $250,000 or $5 per copy. 

This legislation has broad support among those in the fashion 

and apparel industries. While concerns have been expressed by 

some about the scope of the legislation, my office has been engaged 

in discussions with interested parties to ensure that the bill does 

5

not prohibit designs that are simply inspired by other designs, but 

rather targets those that are more significantly similar. 

In addition, the Copyright Office has weighed in with testimony 

saying that almost all of their suggestions have been incorporated 

into this legislation and that it provides a sound basis for balancing 

competing interests. 

I look forward to hearing from our expert witnesses today. As 

America’s fashion design industry continues to grow, America’s designers deserve and need the type of legal protection that are already available in other countries. The Design Piracy Prohibition 

Act establishes these protections. 

Again, thank you, Mr. Chairman, for holding this important 

hearing. 

Mr. SMITH. Thank you, Mr. Goodlatte. 

The gentleman from Massachusetts, Mr. Delahunt? 

Mr. DELAHUNT. I won’t take 5 minutes, Mr. Chairman. 

Mr. SMITH. The gentleman is recognized for an opening statement. 

Mr. DELAHUNT. I thank the Chair for inviting me. 

As you well know, I have served on this Subcommittee during my 

first 3 terms here in Congress. I just want to underscore some of 

the statistics that the Ranking Member, Mr. Berman, referred to 

in his opening remarks: $12 billion in terms of losses because of piracy to the American economy just in this particular segment of 

our American economy. 

We are all aware that in a significant way our competitive advantage in the new world of electronic commerce is at risk because 

of piracy. So what I would suggest is that in addition to fairness 

to the creative community, this is even in a more significant way 

about whether we are going to protect our economy. 

I would suggest that one only has to review the trade deficits 

that we have experienced in a consistent way through the course 

of the past 10 years, that I would suggest support the passage of 

this particular legislation. 

I would just associate myself with the remarks of Mr. Goodlatte. 

Mr. SMITH. Thank you, Mr. Delahunt. 

Let me ask the witnesses to stand, if you would, so you could be 

sworn in, and then we will begin. 

[Witnesses sworn.] 

Mr. SMITH. Thank you. Please be seated. 

I mentioned a while ago that we were going to proceed out of 

order. We are actually going to do something today that has never 

been done, to my knowledge, at this Subcommittee or any other 

Committee. It is with the agreement of the Ranking Member that 

we do so, and that is to allow Mr. Goodlatte to actually ask questions before you all give your testimony. 

That is not to say your testimony is not important. It is to say 

that Mr. Goodlatte has a hearing and a markup of the Committee 

that he chairs, the Agriculture Committee, which begins in 3 minutes. So in an effort to accommodate him because he is the author 

of the bill, along with Mr. Delahunt, we are going to have Mr. 

Goodlatte ask his questions now. That is, of course, with the witnesses’ indulgence, and then we will hear your testimony and the 

rest of us will ask questions at that point. 

6

So Mr. Goodlatte is recognized for his questions. But I want to 

add one caveat, and that is to say that we are not setting a precedent by doing this. This is going to be an exception to the general 

rule. 

Mr. Goodlatte is recognized for his questions. 

Mr. GOODLATTE. Thank you. Mr. Chairman, I am deeply indebted 

to you and Congressman Berman for this forbearance. It is highly 

unusual, and I respect that. If it were not for the fact that the 

other hearing and markup in my Committee is something that is 

of great importance to the Agriculture Committee, I would not impose in that fashion. But since you have been so kind as to hold 

the hearing, I welcome the opportunity to ask a few questions of 

the witnesses before they testify. 

Mr. Wolfe, welcome. I read two interesting things in your testimony. One, you thanked and acknowledged Public Knowledge, well 

represented by GiGi Sohn behind you, for the contribution to your 

efforts to prepare your testimony; and also that you have fashion 

designers as clients. So I was interested in noting that, and I wonder if you think that any of your client designers have ever created 

anything unique or original that would be worthy of protection. 

Okay. Now, let me ask you this question. You mentioned in your 

testimony, in fact, I would say the main focus of your testimony is 

protecting trends in the fashion industry. You want trends to be 

able to move fluidly, and we do, too. In fact, the CFDA has repeatedly told me and other policymakers that they are not interested 

in protecting trends. So I have been looking at language to include 

in the bill to make it clear that trends are not included. 

Would that be an improvement from your perspective? 

Mr. WOLFE. I think there is a difficulty in defining what is a 

‘‘trend.’’ Is a trend an item, or is a trend an idea, or is a trend just 

an attitude? That is one of the major problems about the bill, 

frankly. I think the whole fashion concept is so ephemeral that trying to nail down specifics becomes impossible. 

Mr. GOODLATTE. Mr. Sprigman, not by way of impeachment prior 

to your testimony, but you have a long record of opposing measures 

passed by the Congress that have originated in this Committee, including the Copyright Renewal Act of 1992, the Sonny Bono Copyright Term Extension Act, the Copyright Act of 1976, the Bern 

Convention Implementation Act. I think I am correct in saying that 

you have not been supportive of any of those. 

I also note your view of Congress’s copyright policy expertise is 

that, ‘‘The copyright clause is framed as a delicate balance between 

creation and dissemination, intellectual property and free speech. 

Congress and the court have now sawn off one arm of that balance.’’ You have also said that, ‘‘While the fair use doctrine may 

still exist, however, it has been crippled by the Digital Millennium 

Copyright Act,’’ something that I was very much engaged in the 

crafting of. 

Those are some rather strong views. I have heard from others as 

well about every intellectual property protection, including protection for music and movies. They say it will stifle innovation and 

that consumers will suffer because there will be fewer choices. I 

would appreciate it if you would explain your views further on that. 

7

Mr. SPRIGMAN. Well, that is too broad a question for me to address, except to say that I am not old enough to have a long record 

of opposing those bills, because a lot of them I was a child when 

they were passed. I will just say that I have a record of noting 

some constitutional problems with some of these bills, and I am involved in some litigation that focuses on those constitutional problems. 

Mr. GOODLATTE. Challenging the constitutionality of those statutes? 

Mr. SPRIGMAN. Challenging the constitutionality of the Uruguay 

Round Agreements Act; challenging the constitutionality of the removal from the copyright scheme of formalities. That is a matter 

of public record. I am involved in that litigation. I am a lawyer representing clients in that litigation. 

Mr. GOODLATTE. Okay. 

Mr. SPRIGMAN. In terms of the general desirability of copyright 

laws as a system, I am also on the record as saying that copyright 

is a boon to the United States. It is a boon to the economy. It is 

Congress’s responsibility to get the balance that the framers put 

into the Constitution right, and that balance is a balance between 

creating innovation incentives for authors and inventors, and allowing people access to ideas and to expression. 

That is the important balance, and it doesn’t behoove us to ignore where Congress strikes that balance. We should constantly be 

reexamining whether Congress has struck that balance correctly 

because I would note that technology moves along and a balance 

struck at one point in one technological world may be perfectly appropriate, and it may later become somewhat inappropriate when 

technology evolves and makes things possible that weren’t possible 

before. 

I am not the only one to notice this. Every major copyright scholar has noticed this. 

Mr. GOODLATTE. Based on that comment, let me then follow up 

with this question, similar to the one I asked Mr. Wolfe. If we included language in the bill to make it clear that it only protects 

against copies that are significantly similar and not those merely 

inspired by other designs, would that be an improvement from your 

perspective? 

Mr. SPRIGMAN. I think this bill is unnecessary and I think it is 

unwise. I think the substantial similarities standard in this 

bill——

Mr. GOODLATTE. You are going to get to testify in a minute. 

Mr. SPRIGMAN. Right. And I am going to answer your question. 

Mr. GOODLATTE. You get the last word. 

Mr. SPRIGMAN. Absolutely. 

Mr. GOODLATTE. But if you could answer the question? 

Mr. SPRIGMAN. Yes, I think the ‘‘substantial similarity’’ standard 

that is in the bill now, as I teach my students, would reach designs 

that are inspired as well as those that are copied. I think it would 

be better if the bill were clearly limited only to those garments that 

are point-by-point copies of existing garments, but I don’t think 

that is necessary either, even though it would clearly be better 

than what we have now. 

Mr. GOODLATTE. Thank you, Mr. Sprigman, Professor. 

8

Mr. Chairman, I have other questions, but I will submit those in 

writing, if I may. I thank you very much again for the forbearance. 

Mr. SMITH. Thank you, Mr. Goodlatte. 

That reminds me, I am going to have questions to submit to the 

witnesses as well. We will ask you to respond to those questions 

within a week, if you can. 

We will now return to regular order. Let me introduce the witnesses officially. 

Our first witness is Jeffrey Banks. Mr. Banks is an internationally known fashion designer. His design credits include Ralph 

Lauren and Calvin Klein, as well as his own successful menswear 

label. With 30 years of experience in the fashion industry, Mr. 

Banks has served as a senior boardmember of the Fashion Institute of Technology and currently sits on the executive board of directors of the Council of Fashion Designers of America. Mr. Banks 

is a graduate of the Parsons School of Design. 

Our next witness is David Wolfe. Mr. Wolfe is creative director 

of Doneger Creative Services, the Doneger Group’s trend and color 

forecasting and analysis department. His views have appeared in 

such publications as The Wall Street Journal, Women’s Wear 

Daily, Vogue, Glamour and Forbes. 

Mr. Wolfe has worked in the fashion industry for over 35 years 

and began his career in a small-town department store. He later 

moved to London where he established himself as a fashion artist, 

published in Vogue, Women’s Wear Daily, and the London Times. 

Mr. Wolfe is a graduate of the Cleveland School of Art. 

Our third witness is Susan Scafidi. Professor Scafidi is a member 

of the law and history faculties of Southern Methodist University, 

where I went, and a visiting professor at Fordham Law School. She 

is the author of a book entitled, ‘‘Who Owns Culture?’’ and numerous articles on intellectual property, as well as a Web site dedicated to I.P. and fashion design called ‘‘Counterfeitchic.com.’’

Professor Scafidi has taught intellectual property law for over 10 

years at institutions including Yale and Georgetown. She is a graduate of the University of Chicago, Duke University and Yale Law 

School. 

Our final witness is Chris Sprigman. Mr. Sprigman is an associate professor at the University of Virginia Law School where he 

teaches intellectual property. Mr. Sprigman has served as appellate 

counsel in the Antitrust Division of the U.S. Department of Justice, 

and is a former partner with the Washington, D.C. office of King 

and Spaulding, LLP. Mr. Sprigman graduated from the University 

of Chicago Law School and the University of Pennsylvania. 

Welcome to you all. We have your written statements. Without 

objection, they will be made a part of the record. As you know, we 

hope that you will keep your testimony to 5 minutes. 

Mr. Banks, we will begin with you. 

TESTIMONY OF JEFFREY BANKS, FASHION DESIGNER, ON BEHALF OF THE COUNCIL OF FASHION DESIGNERS OF AMERICA 

Mr. BANKS. Good morning, Chairman Smith and Members of the 

Subcommittee. 

9

I am pleased to testify on behalf of the Council of Fashion Designers of America. I come to speak to you with over 30 years experience in the United States fashion industry, including working for 

Ralph Lauren and Calvin Klein, before starting my own menswear 

business at age 22. 

Much in fashion has changed since then. Fashion generates ap- proximately $350 billion in the United States annually and is no 

longer only based in New York. It is now also centered in such diverse places as L.A., Dallas, Chicago and Atlanta. The American 

fashion industry is made of thousands of small businesses who live 

on the hope of designing something that will capture the imagination of consumers. 

Success in our studios grows opportunities in many sectors, from 

publishing to trucking to retail all across the country. As the Internet has transformed our sister creative industries like music, books 

and motion pictures, creating opportunities as well as problems, it 

has transformed fashion, and not always for the better. Runway 

fashions can now be sent around the world and copied in the blink 

of an eye. 

Fashion design piracy has become a blight that affects all who 

depend on the fashion industry. The U.S. is conspicuous in that unlike Europe and Japan, it does not protect fashion in its laws. H.R. 

5055 provides 3 years of protection for original designs registered 

with the Copyright Office. This is less than the life-plus-70 granted 

to other copyrighted works, less than the 10 years granted to vessel 

hull designs, and less than the protection provided in Europe and 

Japan. 

Because of the unique seasonality of the fashion industry, this is 

enough time for the designer to recoup the work that went into designing and marketing his collection. We believe that the passage 

of design protection would be a powerful deterrent to the pirates. 

I question how many lawsuits for infringement would ever be 

filed. Since registration of designs under H.R. 5055 is mandatory 

and only original non-commonplace designs can be protected, I believe that designers will register very selectively. 

Retailers have told us that if fashion design piracy was illegal, 

they wouldn’t buy copies. The law would have a powerful and 

much-needed deterrent effect on the market. 

As a movie and music aficionado, I would never dream of buying 

an illegal DVD or CD. You recently passed a law to combat counterfeiting. Counterfeiting starts with design piracy. You can’t make 

a counterfeit bag without first copying the bag’s design. Both counterfeiting and piracy must be addressed, or else a small designer 

with no brand recognition will be left defenseless to the problem of 

piracy. 

Copying today through technology is instantaneous. Although a 

designer can spend tens of thousands to mount their runway show 

to reveal their new lines, they frequently don’t even recoup their 

investments. Their designs are stolen before the applause has 

faded; software programs develop patterns from photographs taken 

at the show and automated machines then cut and stitch copies of 

designers’ work from those patterns. Within days, the pirates in 

China are shipping U.S. consumers tons of copies before the designer can ever even get his originals into the store. 

10

American design and designers add a value in the world marketplace. Design innovation is the reason for this. It enables fashion 

houses to provide more choices for consumers, more competition 

and growth, and it won’t occur simply by everybody distributing 

identical product around the world. In the long term, lack of protection will shrink American businesses and mean a loss of American 

jobs. 

Designers want to make their designs available at a variety of 

prices in a variety of stores. In the past few years, we have seen 

a proliferation of American designer partnerships with large American retailers, even discounters like Target, Wal-Mart, J.C. Penney, 

Kohl’s and Payless. Design innovation is an absolutely critical part 

of the economy. Designers can’t compete if low-cost countries copy 

our designs. If we don’t protect American fashion design creativity, 

we deprive consumers of the fashion choices they have enjoyed with 

the growth of the industry, and workers of their jobs. 

The wealthy will still be able to buy the designs originating out 

of Europe and Japan, where protection exists. The rest of America 

will be left buying the cheap knockoffs from Europe. I urge you to 

pass this important legislation. 

And I thank you very much, and I look forward to your questions. 

[The prepared statement of Mr. Banks follows:]

PREPARED STATEMENT OF JEFFREY BANKS

Good morning Chairman Smith, Ranking Member Berman, Representatives Goodlatte and Delahunt and other Members of the Subcommittee. I am pleased to be 

here today on behalf of the Council of Fashion Designers of America. The CFDA is 

a not-for-profit trade association of America’s fashion and accessory designers. The 

CFDA works to advance the status of fashion design as a branch of American art 

and culture and to help elevate this important American industry. 

I got started in the fashion business at the age of 15, working right here in Washington, where I was born and raised, as a salesman at the menswear store Britches 

of Georgetown. Sadly, Britches is no longer in business, but for those of you who 

have been here for a time, you’ll remember that it was once a Washington icon. 

Back then, I was probably one of the only high school students in Washington with 

subscriptions to Daily News Record AND Womens Wear Daily BUT EVEN AS A YOUNG

TEEN, FASHION WAS MY PASSION. I LEFT DC THREE WEEKS AFTER GRADUATING HIGH

SCHOOL, BEGAN WORKING AS RALPH LAUREN’S ASSISTANT, AND STARTED COLLEGE

THAT FALL. I GRADUATED FROM THE PARSONS SCHOOL OF DESIGN AND AFTER WORKING WITH CALVIN KLEIN FOR ONE YEAR, I OPENED MY OWN MENSWEAR LABEL AT THE

AGE OF 22. I COME TO SPEAK TO YOU TODAY WITH OVER 30 YEARS EXPERIENCE IN THE

UNITED STATES FASHION INDUSTRY. 

Much in fashion has changed during those 30 some years. For one, fashion has 

grown into a very significant and important US industry, generating approximately 

$350 billion in the United States each year and supporting the printing, trucking, 

and distribution, advertising, publicity, merchandising and retail industries as well. 

And of course, all the industries which support the production and dissemination 

of men’s and women’s fashion magazines. Although New York is often thought of 

as the U.S. fashion capital because fashion is the 2nd largest money-making business in the city, after the stock market, with the exponential growth of America’s 

fashion and design industries other fashion centers have come into existence across 

the country—Los Angeles, Dallas, and Atlanta come to mind. That wasn’t the case 

30 years ago, when most of the fashion in the United States was copied from the 

European fashion centers of Paris and Milan. Back then there weren’t multitudes 

of talented young American designers generating their own original designs as there 

are today. The fashion industry in the last few years in America has become a very 

significant influence in trends and the way the fashion industry is perceived by consumers. American style. American design. It has meaning. And it has value. 

This wonderful home-grown industry is really made up of thousands of American 

small businesses. We’re all entrepreneurs who pursue our fashion with the hope of 

11

designing something that will catch on and capture the imagination of U.S. consumers. Success that starts in all of our individual design studios, grows opportunities all across the country . . . there are fabric manufacturers, printers, the people 

who produce paper for making patterns, the shippers who ship the merchandise, the 

truckers who truck, design teams, fabric cutters, tailors, models, seamstresses, sales 

people, merchandising people, advertising people, publicists, those who work for retailers. In short, this is a big employment business today. 

The other most significant change in the industry in the past decade is technological. Just as the internet has transformed our sister creative industries like 

music, books and motion pictures, creating opportunities as well as problems, it has 

transformed fashion and not always for the better. In the blink of an eye, perfect 

360 degree images of the latest runway fashions can be sent around the world. And 

of course, they can be copied. And that copying, coupled with the importance of the 

fashion industry to America, is the main reason that I sit before you today. 

Fashion design piracy has become a blight that affects all who depend on the U.S. 

fashion industry. It robs American workers of their livelihood, which is why the 

CFDA is working in an alliance with industry partners such as Harper’s Bazaar

AND EBAY, AMONG OTHERS, TO RAISE THE PROFILE OF THIS MASSIVE PROBLEM. OTHER

COUNTRIES HAVE RECOGNIZED THE PROBLEM AND PROVIDED PROTECTION FOR FASHION

DESIGN TO HELP COUNTER DESIGN PIRACY. THE UNITED STATES IS THE ONLY DEVELOPED COUNTRY THAT DOES NOT PROTECT FASHION IN ITS LAWS. WE WANT TO THANK

REPRESENTATIVES GOODLATTE AND DELAHUNT FOR RECOGNIZING THIS INEQUITY AND

INTRODUCING H.R. 5055, THE DESIGN PIRACY PROHIBITION ACT, TO REMEDY IT. WE

ALSO WANT TO THANK CHAIRMAN SENSENBRENNER AND REPRESENTATIVES COBLE AND

WEXLER, AMONG OTHERS, FOR COSPONSORING THE MEASURE. 

H.R. 5055 would provide three years of protection to those designers who register 

their ORIGINAL designs with the Copyright Office. That is far less than the life 

of the author plus 70 granted to other copyrighted works. However, because of the 

unique seasonality of the fashion industry, we agree with Congressmen Goodlatte 

and Delahunt that a shorter term of protection is reasonable. That allows the designer time to recoup the work that went into designing the article and develop additional lines of ready-to-wear, etc. I will note, however, that in Europe most member states protect fashion for a term of 25 years, with registration. In Japan, it is 

15. 

We believe that passage of design protection would be a powerful deterrent to the 

pirates. In fact, I question how many lawsuits for infringement would actually ever 

be filed. Since registration of designs is mandatory in order for design protection to 

be granted, and only original, noncommonplace designs can be protected, I believe 

that designers will register very selectively. And retailers have told us that if the 

practice of fashion design piracy was illegal, they wouldn’t engage in it. A law would 

have a powerful and much-needed effect on the market. 

THE ADVERSE IMPACT OF PIRACY ON AMERICAN DESIGNERS

I have heard some question whether fashion piracy actually harms the industry. 

A few have even suggested that it may help designers to have their works knocked 

off. I would like to respond to those questions with an emphatic ‘‘yes it does hurt 

the designer and the industry!’’ And no, far from helping the designer, design piracy 

can wipe out young careers in a single season. The young designers are the ones 

who are creating the new designs, which they have to have some way of protecting. 

Copying is stealing. As a movie and music aficionado, I would never dream of buying an illegal DVD or CD on the street. I respect the film and music industries 

much too much, and all of the people that work in them. Piracy is taking somebody’s 

design, replicating it quickly, doing it so that nobody would know the difference between yours and theirs unless you are an expert at it, and sending it out as your 

own. That’s clearly wrong and American law must address it. 

The Congress has passed laws to protect against counterfeits. One in three items 

seized by U.S. Customs is a fashion counterfeit. Just this year, you made it illegal 

to traffic in the labels that are used in counterfeit goods. But a copy of a design 

is really a counterfeit without the label. If no design piracy existed, there would be 

no counterfeiting. Both must be addressed or else the small designer with no brand 

recognition is left defenseless to the problem of piracy, leaving only famous brands 

protected, and then only if the label is taken. 

The fashion business is a tough business. With each new season, designers put 

their imagination to work, and they put their resources at risk. When I started my 

business, I started with a five thousand dollar loan from my family. You never 

would do that today. It takes tens of thousands of dollars to start a business. And 

every season when you go out to create, if you’re creating original prints, original 

12

patterns, original samples that you have to go through trial and error, you are talking about thousands and thousands of dollars. Then if you go to put on a show, you 

can spend anywhere from fifty thousand dollars to a million dollars just to put on 

a show to show buyers and press what you’re creating for that season. So, before 

you have even received your first order, you’ve spent thousands and thousands and 

thousands of dollars. Whether you are an accessory designer or a star designer creating men’s, women’s, children’s lines, you spend many thousands of dollars before 

you see your first order. 

Some designers make their names in haute couture, where they sell a very small 

number of rather expensive designs. While the designs are high priced, the designer 

frequently doesn’t even recoup investment costs for the designs because he or she 

sells so few garments. Designers are able to recoup their investments when they 

offer their own ready-to-wear lines. They can lower the prices at which their designs 

are sold because they sell more of them. It’s all based on volume. Design piracy 

makes it difficult for a designer to move from haute couture into ready to wear. 

The Council of Fashion Designers of America is all about mentoring. We partner 

with Vogue to run a mentoring program for young designers—offering on-going technical advice and business grants. A documentary, Seamless, WAS EVEN MADE ABOUT

IT. (WE ARE REACHING OUT TO YOU AS MUCH FOR THE YOUNG DESIGNERS AS ANYONE

ELSE). THE CFDA RECEIVED TONS OF E-MAILS AFTER THE BILL WAS INTRODUCED, SAY- ING, ‘‘THANK YOU, I’VE BEEN PIRATED.’’

PIRACY FUELED BY TECHNOLOGY

Copying, years ago, would take anywhere from three to four months to a year or 

more. But as I said, all that changed with new technology. So once a designer 

spends the thousands and thousands and gets to that runway show and then reveals a new and original design—it can be stolen before the applause has faded 

thanks to digital imagery and the internet. Today, there are even software programs 

that develop patterns from 360 degree photographs taken at the runway shows. 

From those patterns, automated machines cut and then stitch perfect copies of a designer’s work. Within days of the runway shows, the pirates at the factories in 

China and other countries where labor is cheap are shipping into this country those 

perfect copies, before the designer can even get his or her line into the retail stores. 

Since there is no protection in America, innovation launched on the runway—or the 

red carpet—is stolen in plain sight. 

The famous designer with an established and substantial business might be able 

to withstand that assault, but it can absolutely derail the career of a young designer. Let me show you a few examples of the type of copying that I’ve been describing—these photos are included in my testimony. At this year’s Golden Globes, 

Desperate Housewives star Marcia Cross wore a stunning coral gown designed by 

young designer Marc Bouwer. Within days a famous manufacturer renowned for its 

copying of dresses of the stars had shipped an exact copy to stores across the nation. 

This dress became that particular manufacturers’ most popular selling prom dress 

of the year. 

At the Academy Awards Felicity Huffman wore a black gown created by designer 

Zac Posen, a 25 year old designer from Manhattan who manufactures all of his designs there in the city. This time, a different manufacturer sold exact copies of the 

design and was bold enough to use the fact that Huffman wore the gown in his advertising. That’s completely legal in the United States. And it prevents Marc 

Bouwer or Zac Posen from being able to develop the affordable ready-to-wear line 

of their own designs. They can’t gain the volume to allow them to compete against 

the company that pirated their creations. And it dilutes their haute couture brands 

because nobody will spend thousands for a gown when it is available for hundreds 

in a department store. Without a law that makes it clear that design piracy is illegal, these pirates base their marketing strategy on all the free advertising they receive—based on how good they are at copying! This is an example of the growth of 

one type of American fashion on the back of small business. That’s just wrong, but 

it’s all perfectly legal under U.S. law. 

THE IMPACT OF FASHION PIRACY ON CONSUMERS

Some have argued that protecting fashion will drive up costs, accessibility and ultimately harm consumers. I am deeply offended by this argument. In fact the same 

could be said for the protection of music, movies, software and books. If these works 

weren’t protected by copyright, if new technologies weren’t protected by patents, 

wouldn’t prices come down for consumers? In fact, some of the very proponents of 

eviscerating protection for copyrighted works and limiting the copyright laws are 

now arguing against protecting fashion design. 

13

If the fashion business is going to grow and provide more choices for consumers, 

we must understand that design innovation is the real leverage point for American 

companies—both big and small. More competition and growth won’t occur simply by 

everybody distributing the identical product around the world because copying isn’t 

illegal. Growth won’t occur because somebody can steal designer’s creation and then 

go sell it for a third of the price. In the long term, lack of protection will shrink 

American businesses and mean the loss of American jobs. 

Designers want to make their designs available at a variety of prices in a variety 

of stores. In the past few years we have seen a proliferation of partnerships between 

American designers and large American retailers—even discount retailers. American designers are collaborating with retailers who realize the enormous benefit of 

an Isaac Mizrahi at Target, a Mark Eisen at Wal-Mart, or a Nicole Miller at JC 

Penny. Kohls is reported to be negotiating to sign Vera Wang. These stores have 

all seen the value of making the works of American designers available in their 

stores through licensing deals so that these designers get paid for their innovation 

and creativity. This proves that the real growth of American fashion is in the lower 

to mid price range. 

Other retailers have gone a different path, not licensing, not even hiring in-house 

designers. They are skipping the use of their own designers in order to copy the 

work of others and make it available more cheaply—this is done on the backs of 

the original designers. But design innovation—in fact brands as we know them—

is an absolutely critical part of a free American economy. With extra labor expenses 

in the West, designers can’t compete if low cost labor countries copy our designs. 

We have an investment in those designs—they don’t. We can’t compete against piracy so the creativity and innovation that has put American fashion in a leadership 

position will dry up. Innovation is an investment but we can’t innovate without protection against copying. 

If we don’t protect American fashion design creativity, we’re going to lose all the 

advantages we’ve gained in the last ten years by now becoming a global industry, 

by now working side by side with Milan and Paris. There won’t be any more L.A. 

Style which has become so hot around the globe. No Texas style. The wealthy will 

still be able to buy the designs originating out of Europe and Japan where protection exists. The rest of America will be left buying the cheap knockoffs of those European designs made in China and other places in Asia where labor is cheap. That 

will be bad for consumers who have enjoyed the growth of fashion choices in the 

U.S. And it will be sad for the workers employed by U.S. fashion industry when 

they no longer have jobs. 

I ask that you not let that situation take place. Please pass a law to protect the 

creativity and innovation of American fashion design just as this subcommittee has 

done for America’s other creative industries. Europe grants designs 25 years of protection. Boat hulls in this country receive 10. We only ask for three. Please pass 

the Design Piracy Prohibition Act this year. I thank you for your time and look forward to your questions.

Mr. SMITH. Thank you, Mr. Banks. 

Mr. Wolfe? 

TESTIMONY OF DAVID WOLFE, CREATIVE DIRECTOR,

THE DONEGER GROUP 

Mr. WOLFE. Thank you, Chairman Smith, Ranking Member Berman and Members of the Subcommittee, for inviting me to speak 

to you today on the proposed copyright for fashion design. I am 

David Wolfe. I am creative director of Doneger Creative Services. 

I analyze men’s, women’s and youth apparel and accessories markets, as well as big-picture developments in style, culture and society. The fashion industry is thriving in America and it has for the 

past century because of, and not in spite of, a lack of copyright protection for fashion designs. 

The fashion industry is like a balanced ecosystem of an ocean 

reef. It exists because all the various symbiotic elements of design 

are inspired and they feed off each other. It is successful because 

it achieves an independent blend of originality, creativity, and yes, 

14

copying, and like a reef, the ecosystem would collapse completely 

in the absence of any one of those elements. 

H.R. 5055 and the creation of the three monopolies over design 

would disrupt this delicate balance and devastate a flourishing industry. Copyright law in this country is premised on protecting 

originality, but finding and defining originality in fashion is an extremely difficult, if not impossible, task. 

Fashion is a craft, not a science or an art. Fashion is a long tradition of crafts-people working with the same materials, tools, and 

concepts, which is what makes it difficult for someone to design 

something that has not been done in a similar or same way before. 

Current fashion is the product of generations of designers refining 

and redeveloping the same items and ideas over and over. 

Copying and appropriation in fashion isn’t just about creating a $200 knockoff of $2,000 dresses. It is about incorporating influences from all around. Trends don’t always work from the top 

down, from the exclusive studios of couture to the sales rack in the 

shopping mall. Often, they work from the bottom up. 

Because it is so difficult to determine what is original about a 

particular fashion design, it would be equally difficult to enforce a 

copyright fairly. Defining and determining originality is difficult 

enough for those of us who work in and study the fashion industry. 

It would be nearly impossible for a court or Government agency. 

If a court cannot determine the originality, then how could it fairly 

determine whether one design infringes upon another, or whether 

a design is substantially similar or whether a design is sufficiently 

original to qualify for copyright protection? 

I have a few examples with me to illustrate how unfair a copyright would be and how difficult it would be to enforce. Okay? 

Mr. SMITH. I see we have a visual assist here. 

Mr. WOLFE. We have visual assistance. 

This is almost an original jeans jacket. It is not from Levis or the 

Gap. It is from Gloria Vanderbilt. 

Flip it around, please. 

Okay. Does this make it an original? All of these are jeans jackets. Where does the originality strike? Who thought of putting jeweled buttons on? 

Okay, thank you. 

Fashion design is about creating compilations of elements. 

Mr. SMITH. I think we ought to give Mr. Banks an opportunity 

to have a fashion show if you are going to present that. [Laughter.] 

Mr. WOLFE. Copyright would stifle the fashion industry when 

certain design elements that were otherwise available in the public 

domain for all to use, like jeweled buttons, would be rendered offlimits. Not only will copyright create litigation, injunctions and licensing that will slow the pace of producing new designs, but fashion designers will have a limited array of design elements available 

to create new designs. 

Finally, I would like to point out that fashion designers already 

have protection for their brands through trademark law. By opposing a copyright for fashion, I am not suggesting condoning piracy 

in any way. Designers already have legal remedies if a another designer or manufacturer uses their trademark and confuses the consumers as to who made the goods. But copyright for fashion design 

15

doesn’t make sense because it is a craft that is dependent on building from the past, ideas that came before. It is evolutionary. 

I urge you to oppose H.R. 5055 and any legislation that would 

create a copyright for fashion design. 

Thank you. I look forward to your questions. 

[The prepared statement of Mr. Wolfe follows:]

PREPARED STATEMENT OF DAVID WOLFE


DW0001.eps
16


DW0002.eps
17


DW0003.eps
18


DW0004.eps
19


DW0005.eps
20


DW0006.eps
21

ATTACHMENT


DW0007.eps
22


DW0008.eps
23


DW0009.eps
24


DW0010.eps
25


DW0011.eps
26


DW0012.eps
27


DW0013.eps
28


DW0014.eps
29


DW0015.eps
30


DW0016.eps
31


DW0017.eps
32


DW0018.eps
33


DW0019.eps
34


DW0020.eps
35


DW0021.eps
36


DW0022.eps
37


DW0023.eps
38


DW0024.eps
39


DW0025.eps
40


DW0026.eps
41


DW0027.eps
42


DW0028.eps
43


DW0029.eps
44


DW0030.eps
45


DW0031.eps
46


DW0032.eps
47


DW0033.eps
48


DW0034.eps
49


DW0035.eps
50


DW0036.eps
51


DW0037.eps
52


DW0038.eps
53


DW0039.eps
54


DW0040.eps
55


DW0041.eps
56


DW0042.eps
57


DW0043.eps
58


DW0044.eps
59


DW0045.eps
60


DW0046.eps
61


DW0047.eps
62


DW0048.eps
63


DW0049.eps
64


DW0050.eps
65


DW0051.eps
66


DW0052.eps
67


DW0053.eps
68


DW0054.eps
69


DW0055.eps
70


DW0056.eps
71


DW0057.eps
72


DW0058.eps
73


DW0059.eps
74


DW0060.eps
75


DW0061.eps
76


DW0062.eps
77

Mr. SMITH. Thank you, Mr. Wolfe. 

Ms. Scafidi? 

TESTIMONY OF SUSAN SCAFIDI, VISITING PROFESSOR, FORDHAM LAW SCHOOL, ASSOCIATE PROFESSOR, SOUTHERN 

METHODIST UNIVERSITY 

Ms. SCAFIDI. Thank you. Good morning, and thanks to Chairman 

Smith, Representative Berman, Congressman Delahunt, and all of 

the Members of the Subcommittee for inviting me to speak to you 

about intellectual property and fashion design this morning. 

Fashion designer Coco Chanel is sometimes quoted as having 

said, ‘‘Protecting the seasonal arts is childish.’’ However, most people who repeat that statement seem to ignore the fact that in the 

1930’s Coco Chanel herself joined fellow designers as a plaintiff in 

a landmark French lawsuit that shut down a notorious copyist and 

helped Chanel build the house that still bears her name. In other 

words, Coco Chanel was a smart businesswoman who knew how to 

tell the public what it wanted to hear, while using the law to protect her intellectual capital. 

This is the constitutional intent of copyright law, to promote and 

protect the development of creative industries by ensuring that creators are the ones who receive the benefit of their own intellectual 

investments. Of course, fashion designers create without the benefit of copyright law, but so would poets and songwriters if there 

were no copyright. It is what humans do. It is also the case that 

trends in fashion exist in every creative industry, including those 

supported by copyright. 

The problem today is that, as in other industries like music and 

film, the digital era has made pursuing a creative business without 

copyright protection even more difficult. Even Mr. Sprigman just 

admitted that technology changes things. A digital photograph of 

a new design can be uploaded to the Internet and sent to a 

knockoff artist halfway around the world before the model even 

reaches the end of the runway, as Mr. Banks pointed out. It used 

to take months to copy a new style. Now it takes mere hours. That 

ecosystem has been upset. 

Creative design at all price levels is vulnerable to copying. H&M, 

a popularly priced chain that distributes trends to the mass market 

and is sometimes cited as an example of indifference to copying, 

was itself knocked-off and brought action last year under E.U. unregistered design protection. 

The United States should no longer be a pirate nation with respect to intellectual property, as we were in our early years. We 

are a global superpower and we work with fellow members of the 

G-8 group, the WTO, the World Intellectual Property Organization 

at their bilateral trade negotiations to promote I.P. protection, except in the area of fashion design. 

This is particularly surprising in light of those concerns that 

Congressman Goodlatte mentioned about counterfeit trademarks. 

After all, those fake trademarks have to be affixed to something, 

often goods created through design piracy. 

At this point in our history, America should not be a safe haven 

for copyists. The failure to protect fashion design is both inconsistent with our international policy and a disadvantage to our own 

78

creative designers, especially the young designers who represent 

the future of the American industry and who are particularly vulnerable to copying. 

Consider the example of Ananas, a 3-year-old handbag label. Its 

cofounder is a young wife and mother working from home, actually 

here in the Washington suburbs, and she has been successful in 

promoting her handbags, which retail between $200 and $400. Earlier this year, however, she received a telephone call from a buyer 

canceling the wholesale order. When she asked why, she learned 

that the buyer had found virtually identical bags in a cheaper material at a lower price. 

Shortly thereafter, the same designer looked on the Internet and 

discovered a post on a message board from a potential customer 

who had seen one of her bags in a major department store, thought 

about buying it, but went home and on the Internet found a cheaper bag, a look-alike in lower-quality materials, which she not only 

bought but recommended to others. So Ananas is still in the business at present, but that loss of those wholesale and retail orders 

is a huge loss to a small business. 

As a law professor with a particular interest in unprotected areas 

of creativity, I have kept a file on I.P. in fashion design for almost 

a decade. I have a Web site, as you mentioned, thank you, dedicated to the subject. I also frequently speak with young designers 

who have been copied or who would like to proactively protect their 

work. 

One of the most difficult things to explain to those young designers is that U.S. law doesn’t consider fashion design to be worthy 

of protection. I hope instead to one day have the law behind them 

to deter copying in the first place and to protect them against design piracy when the need arises. 

So H.R. 5055, with its short-term, narrowly tailored protection 

for the fashion industry is, I think, a groundbreaking example of 

how copyright law can be narrowly tailored, and carefully designed 

to serve the creators and the public interest. 

In fact, this kind of short-term protection is exactly the model of 

copyright suggested by some law professors who have opposed this 

Subcommittee’s actions on other bills. I am surprised and disappointed that various individuals don’t believe that the fashion industry deserves even a minimal amount of protection when compared with other forms of creative expression. 

So I would like to thank and congratulate the Subcommittee on 

taking the issue of fashion design seriously and holding this hearing, and I look forward to your questions. 

Thanks. 

[The prepared statement of Ms. Scafidi follows:]

PREPARED STATEMENT OF SUSAN SCAFIDI

Chairman Smith, Representative Berman, and members of the Subcommittee, 

thank you for this opportunity to address the issue of intellectual property (IP) protection and fashion design. 

INTRODUCTION AND EXECUTIVE SUMMARY

Historically, American law has ignored the fashion industry. While trademark law 

protects designer logos and patent law occasionally applies to innovative design elements, the Copyright Office has held that clothing design in general is not subject 

79

1 Joanne B. Eicher, Clothing, Costume and Dress in 1 ENCYCLOPEDIA CLOTHING AND FASHION

270 (2005); Valerie Steele, Fashion, in 2 ENCYCLOPEDIA OF CLOTHING AND FASHION 12 (2005). 

to protection. As a result of this legal and cultural choice, the United States has 

been a safe haven for design piracy. Creative fashion designers over the past century have been forced to rely instead on social norms and makeshift means of defending themselves against copyists. 

Today, global changes in both the speed of information transfer and the locus of 

clothing and textile production have resulted in increased pressure on creative designers at all levels, from haute couture to mass market. Digital photographs from 

a runway show in New York or a red carpet in Los Angeles can be uploaded to the 

internet within minutes, the images viewed at a factory in China, and copies offered 

for sale online within days—months before the designer is able to deliver the original garments to stores. Similarly, e-commerce is both an opportunity and a danger 

for designers, who must battle knockoff artists with ready access to detailed photographs and descriptions of their works. Young designers who have not yet achieved 

significant trademark recognition, and must instead rely on the unique quality of 

their designs to generate sales, are particularly vulnerable to such theft. 

Despite America’s role in promoting the international harmonization of intellectual property protection, the U.S. has not joined other nations in addressing the 

issue of design piracy and its effects on the fashion industry. The U.S.T.R. has repeatedly targeted the rising global trade in counterfeit trademarked goods, including 

apparel, but copies of a garment rather than its label remain beyond the reach of 

American law. H.R. 5055 is a measured response to the modern problem of fashion 

design piracy, narrowly tailored to address the industry’s need for short-term protection of unique designs while preserving the development of seasonal trends and 

styles. 

I. HISTORICAL LACK OF PROTECTION AND CHANGED CIRCUMSTANCES

The lack of protection for fashion design under U.S. law is an anomaly among mature industries that involve creative expression. This exclusion of fashion from the 

realm of copyright was not inevitable, but was instead the result of deliberate policy 

choices. Examining the historical and cultural reasons for the differential treatment 

of fashion design is thus important to understanding the changed circumstances 

that indicate a greater need for some form of protection today. 

A. Theory and Reality: The Historical IP/Fashion Divide 

1. Fashion design is part of the logical subject matter of copyright. 

While in the early days of U.S. copyright only books and maps were eligible for 

registration, the scope of protection has since increased to include painting, sculpture, textile patterns, and even jewelry design—but not clothing. 

Why has clothing been excluded from protection? The problem lies in a reductionistic view of fashion as solely utilitarian. Current U.S. law understands clothing 

only in terms of its usefulness as a means of covering the body, regardless of how 

original it might be. Surface decoration aside, the plainest T-shirt and the most fanciful item of apparel receive exactly the same treatment under copyright law. In 

fact, a T-shirt with a simple drawing on the front would receive more protection 

than an elaborate ball gown that is the product of dozens of preliminary sketches, 

hours of fittings, and days of detailed stitching and adjustment before it is finally 

complete. The legal fiction that even the most conceptual clothing design is merely 

functional prevents the protection of original designs. 

Fashion, however, is not just about covering the body—it is about creative expression, which is exactly what copyright is supposed to protect. Historians and other 

scholars make an important distinction between clothing and fashion. ‘‘Clothing’’ is 

a general term for ‘‘articles of dress that cover the body,’’ while ‘‘fashion’’ is a form 

of creative expression.1 In other words, a garment may be just another item of clothing—like that plain T-shirt—or it may be the tangible expression of a new idea, the 

core subject matter of copyright. 

Copyright law, of course, has a mechanism for dealing with creations that are 

both functional and expressive, although it has not been consistently applied to 

fashion designs. It is conceivable—and perhaps inevitable in the absence of specifically tailored legislation—that a court could invoke the doctrine of ‘‘conceptual separability’’ to distinguish between the artistic elements of a new fashion design and 

its basic function of covering the human body. Recent judicial treatment of a Halloween costume design follows essentially this course, noting that elements of a costume like a head or tail are at least in theory separable from the main body of the 

80

2 Chosun Int’l., Inc. v. Chrisha Creations, Ltd., 413 F.3d 324 (2d Cir. 2005). 

3See, e.g., Poe v. Missing Persons, 745 F.2d 1238 (2d Cir. 1984). 

garment and thus potentially subject to copyright protection.2 It would require only 

a small step to find that the uniquely sculptural shape of Charles James’ famous 

1953 ‘‘four-leaf clover gown’’ or Zac Posen’s 2006 umbrella-sleeve blouse are conceptually independent of the human forms beneath them and thus copyrightable. Visual artists, too, have blurred the distinction between art and fashion by designing 

unique works of art in the shape of clothing.3

In short, fashion design is a creative medium that is not driven solely by utility 

or function. If it were, we could all simply wear our clothes until they fell apart or 

no longer fit. Instead, the range of new clothing designs available each season to 

cover the relatively unchanging human body—and the production of specific, recognizable copies—demonstrates that designers are engaged in the creation of original works. 

From the perspective of theoretical consistency, then, the relationship between 

copyright law and fashion design is ripe for change. However, relying on the courts 

to take this step would be a lengthy and uncertain process, one that might ultimately require a Supreme Court decision to sort through conflicting precedents. The 

judiciary, moreover, does not have the authority to tailor intellectual property law 

to the specific needs of the fashion industry and the public, as would H.R. 5055 (discussed further in Section IV infra), but can only apply existing law. The most efficient and reflective way to secure copyright protection for the creators of fashion designs would be an act of Congress. 

2. U.S. law does not support the economic development of the fashion industry. 

Despite the importance of creative fashion design to the global economy, and to 

many local economies within the United States, it still operates without the benefits 

of modern intellectual property protection. 

In historical terms, the pattern of industrial development in the U.S. and more 

recent emerging economies often commences with a period of initial piracy, during 

which a new industry takes root by means of copying. This results in the rapid accumulation of both capital and expertise. Eventually the country develops its own creative sector in the industry, which in turn leads to enactment of intellectual property protection to further promote its growth. This was the pattern followed in the 

music and publishing industries, in which the U.S. was once a notorious pirate nation but is now a promoter of IP enforcement. 

In the case of the American fashion industry, however, the usual pattern of unrestrained copying followed by steadily increasing legal protection is not present. This 

situation has led to multiple inefficiencies in the development of the U.S. fashion 

industry. In the legal realm alone, creative designers have borne the costs of a decades-long effort to craft protection equivalent to copyright from other areas of IP 

law, particularly by pressing the boundaries of trademark, trade dress and patent 

law. While each of these areas of intellectual property law offers protection to some 

aspects of fashion design, most notably logos used as design elements and famous 

designs that have developed sufficient secondary meaning to qualify for trade dress 

protection, the majority of original clothing designs remain unprotected. Even design patents, which can in theory protect the ornamental features of an otherwise 

functional object, are seldom useful in a seasonal medium like fashion. The result 

is a legal pastiche that is confusing, expensive to apply, and ultimately unable to 

protect the core creativity of fashion design. 

Current U.S. IP law thus supports copyists at the expense of original designers, 

a choice inconsistent with America’s position in fields of industry like software, publishing, music, and film. The most severe damage from this legal vacuum falls upon 

emerging designers, who every day lose orders—and potentially their businesses—

because copyists exploit the loophole in American law. While established designers 

and large corporations with widely recognized trademarks can better afford to absorb the losses caused by rampant plagiarism in the U.S. market, very few small 

businesses can compete with those who steal their intellectual capital. In fashion, 

America is still a pirate nation; the future direction of the industry will be directly 

influenced by the absence or presence of intellectual property protection. 

B. Cultural Explanations and Changed Circumstances 

The differential treatment of fashion relative to other creative industries with extensive legal protection is the result of specific cultural perceptions and historical 

circumstances, many of which have now changed. While it is beyond the scope of 

this testimony to address the entire cultural history of the fashion industry, several 

81

4Thorstein Veblen, THE THEORY OF THE LEISURE CLASS 132 (1899; Random House 2001 ed.) 

recent developments are particularly important to understanding why a change in 

the law is appropriate at this time. 

1. Fashion design is now recognized as a form of creative expression. 

The origins of copyright law date back to the Enlightenment era, a period that 

also articulated the Western distinction between art and craft. As copyright developed and extended to include various forms of literary and artistic works, it continued to maintain the division between legally protected, high status ‘‘fine art’’ and 

mere ‘‘decorative arts’’ or handicrafts. The design and manufacture of clothing, 

which for most families was a household task, did not rise to the level of creative 

expression in the eyes of the law. 

Even after fashion design became increasingly professionalized during the nineteenth century, with the development of both haute couture and ready-to-wear sectors, the U.S. failed to recognize its creative status. Contributing to this low valuation was fashion’s association with women rather than men, a shift influenced by 

the Industrial Revolution. By the end of the nineteenth century, American sociologist Thorstein Veblen famously linked fashion with ‘‘conspicuous consumption,’’ concluding that the role of the female was ‘‘to consume for the [male] head of the household; and her apparel is contrived with this object in view.’’ 4 Both the feminizing 

of fashion and the intellectual attention to consumption rather than production prevented the legal recognition of fashion as a serious creative industry. 

Modern attitudes toward fashion design as a creative medium, however, have 

changed dramatically. Institutions from the Smithsonian to Sotheby’s take fashion 

seriously, and organizations like the National Arts Club and the Cooper-Hewitt National Design Museum have recently added fashion designers to their annual categories of honorees. Even a Pulitzer Prize for criticism was awarded for the first 

time this year to a fashion writer, Robin Givhan of the Washington Post. It is inconsistent with this cultural shift for copyright law to deny fashion’s role as an artistic 

form. 

2. Creative design now exists at all price levels. 

For most of the history of the fashion industry, a small group of elite, Parisian 

fashion designers dictated seasonal trends, and the rest of the world followed as 

best they could. The privileged few were measured for couture originals, the relatively affluent bought licensed copies, and the majority settled for inexpensive 

knockoffs or sewed their own garments at home. 

With the recent democratization of style, creative design originates from many 

sources and at all price levels. Fashion is now as likely to flow up from the streets 

as down from the haute couture, and reasonable prices are no guarantee against 

copyists. Some of the most aggressively copied designs are popularly priced; consider 

this summer’s popular Crocs ‘‘Beach’’ style shoe at $29.99 and its battle with copies 

sold for as little as $10.00. 

In addition, within the past few years high-end designers have shown an increasing desire to reach a wider audience and to collaborate with mass-market producers. 

Fashion houses are seeking to experiment with new ideas in their runway collections, then to provide customers with affordable versions in their diffusion lines, and 

finally to adapt the looks for a broad range of consumer needs and budgets. This 

trickle promises to become a flood, as Isaac Mizrahi’s designs for Target are joined 

by Chanel designer Karl Lagerfeld’s line for H&M, Mark Eisen’s sportswear for 

Wal-Mart, and many others. 

As a result of these changes, it is no longer necessary for the general public to 

turn to knockoffs in order to purchase fashionable apparel, as it might have been 

in past decades. Some creative work is simply affordable; in addition, creators of 

more expensive designs are now finding ways to enter the mass market as well. A 

change in copyright law to incorporate fashion would facilitate designers’ ability to 

disseminate their own new ideas throughout the market, much the way copyright 

law allows book publishers to first release hardcover copies and then, if the book 

is successful, to print paperbacks. 

3. The internet era calls for new strategies to protect creativity. 

Creative fashion designers in earlier periods fought copyists by relying on strategic measures like speed and secrecy, the social norms of the industry, and perhaps 

patterns of consumer behavior. In the absence of copyright protection under U.S. 

law, these extralegal mechanisms were an important part of the fashion business. 

Today, however, the same speed and accuracy of information transfer that affects 

the music and film industries is also having an impact on fashion. Would-be copyists 

82

5See Paul H. Nystrom, ECONOMICS OF FASHION 18–54 (1928). 

no longer have to smuggle sketch artists into fashion shows and send the results 

to clients along with descriptions of color and fabrication. Instead, high-quality digital photos of a runway look can be uploaded to the internet and sent to copyists 

anywhere in the world even before the show is finished, and knockoffs can be offered for sale within days—long before the original garments are scheduled to appear in stores. Fifty years ago, design houses may have been able to impose somewhat successful embargoes on the press; now, such efforts are futile. 

Similarly, the claim that knockoffs enhance demand for ever-newer luxury goods 

among status-seeking consumers, an economic argument dating back to at least 

1928,5 fails to take into account the modern speed of production. Once upon a time 

it may have been that the adoption of a new luxury item by affluent trendsetters 

was imitated first by wealthy consumers, then by the middle class, and then in form 

of knockoffs by everyone else, at which point the fashion-forward would abandon the 

item and demand the next new thing—which producers were happy to provide. 

Today, however, this ‘‘fashion cycle’’ scenario is rendered obsolete by the fact that 

poor quality knockoffs can be manufactured and distributed even more quickly than 

the originals, leaving creative designers little opportunity to recover their investment before the item is already out of style. Even if the fashion cycle were ever sufficient to support the design industry, that is no longer the case. 

As in other areas of creative production, the digital age should provoke a reexamination of the legal protection available to fashion design. 

4. The future of American fashion is in creativity, not low-cost copying. 

Textile and clothing manufacturing have historically played an important role in 

the American economy, driving the Industrial Revolution and supporting thousands 

of jobs. With the increased harmonization of global markets and the January 1, 

2005, dismantling of import quotas in this sector, however, it has become apparent 

that the U.S. can no longer compete with China and other centers of low-cost production on price alone. No matter how inexpensively the U.S. can produce knockoffs, 

other countries can manufacture much cheaper versions. 

Instead, the future of the U.S. economy will rest on the ability to develop and protect creative industries, including fashion design. America leads the world in industries like music, film, and computer software, but our history as a pirate nation in 

the field of fashion has limited our influence in this area. Creative fashion design 

is a relatively young industry in the U.S., albeit one in which there is growing interest among students choosing their careers. If this industry is to reach its full potential, now is the time to consider the impact of government policies, including intellectual property law. 

II. EFFECTS OF DESIGN PIRACY

The lack of copyright protection for fashion design negatively affects both individual designers whose expressions are copied and the intellectual property system 

as a whole. As a law professor with a website dedicated to IP and fashion, I frequently receive messages from young designers whose work has been stolen or who 

hope to prevent the copying of their designs. It is with regret that I must repeatedly 

explain that while that law can protect designers’ trademarks against counterfeiters, in the U.S. the actual designs are fair game for copyists. 

A. Impact on Designers 

Creativity is an intrinsic part of human nature, not a byproduct of the intellectual 

property system. Poets would continue to write, musicians to sing, and fashion designers to sew even if all copyright protection were eliminated tomorrow. While the 

concept of intellectual property is only a few hundred years old, archaeologists have 

recently discovered 100,000-year-old shell necklaces, which they interpret as the 

first evidence of human symbolic thinking. 

The goal of the IP system, however, is not merely to ensure that authors put pen 

to paper or needle and thread to fabric, but to encourage and reward individuals 

so that they can continue to develop their ideas and skills in a productive manner. 

In other words, intellectual property law ideally serves as a tool for harnessing and 

directing creativity. For this reason, the Constitution empowers Congress ‘‘[t]o promote the progress of science and useful arts.’’ It is this ‘‘progress’’ over time that 

is hindered by the lack of legal protection for fashion design. 

Young designers attempting to establish themselves are particularly vulnerable to 

the lack of copyright protection for fashion design, since their names and logos are 

not yet recognizable to a broad range of consumers. These aspiring creators cannot 

simply rely on reputation or trademark protection to make up for the absence of 

83

6 Elizabeth Hawes, FASHION IS SPINACH (1938). 

copyright. Instead, they struggle each season to promote their work and attract customers before their designs are copied by established competitors. 

Over the past century successive waves of American designers have entered the 

industry, but few fashion houses have endured long enough to leave a lasting impression comparable to the influence of French fashion. While it is difficult to quantify or even identify designers who give up their businesses, particularly for reasons 

of piracy, there is strong anecdotal evidence that design piracy is harmful to the 

U.S. fashion industry. Consider just two representative examples, one a historical 

snapshot from an early attempt to develop American fashion and the other from this 

year. 

In 1938 Elizabeth Hawes wrote a best-selling critique of the fashion industry entitled Fashion is Spinach.6 In it, she chronicled her start working for a French copy 

house, the only job in the fashion industry available to a young expatriate American 

in the 1920s; her return to New York to design her own line; and her ultimate disillusionment with the tyranny of mass production and the ubiquity of poor quality 

knockoffs that undercut her own designs. She ultimately closed her business in 

1940, but not before leaving a record of the perils of the industry for a creative designer. 

From a legal perspective, little has changed in almost seventy years. Handbag designer Jennifer Baum Lagdameo co-founded the label Ananas approximately three 

years ago. A young wife and mother working from home, Jennifer has been successful in promoting her handbags, which retail between $200 and $400. Earlier this 

year, however, she received a telephone call canceling a wholesale order. When she 

inquired as to the reason for the cancellation, she learned that the buyer had found 

virtually identical copies of her bags at a lower price. Shortly thereafter, Jennifer 

discovered a post on an internet message board by a potential customer who had 

admired one of her bags at a major department store. Before buying the customer 

looked online and found a cheap, line-for-line copy of the Ananas bag in lower quality materials, which she not only bought but recommended to others, further affecting sales of the original. While Ananas continues to produce handbags at present, 

this loss of both wholesale and retail sales is a significant blow to a small business. 

Copying is rampant in the fashion industry, as knockoff artists remain free to 

skip the time-consuming and expensive process of developing and marketing new 

products and simply target creative designers’ most successful models. The race to 

the bottom in terms of price and quality is one that experimental designers cannot 

win. Nearly every designer or even design student seems to have a story about the 

prevalence of copying, a situation that makes the difficult odds of success in the 

fashion industry even longer. 

B. Design Piracy and Counterfeiting 

Not only does the legal copying of fashion designs harm their creators, it also provides manufacturers with a mechanism for circumventing the current campaign 

against counterfeit trademarks. If U.S. Customs stops a shipping container with 

fake trademarked apparel or accessories at the boarder, it can impound and destroy 

those items. If, however, the same items are shipped without labels, they are generally free to enter the country—at which point the distributor can attach counterfeit labels or decorative logos with less chance of detection by law enforcement. I 

have personally witnessed the application of such counterfeit logos to otherwise 

legal knockoffs at the point of sale; after the consumer chooses a knockoff item, the 

seller simply glues on a label corresponding to the copied design. The continued exclusion of fashion designs from copyright protection thus undermines federal policy 

with respect to trademarks by perpetuating a loophole in the intellectual property 

law system. 

III. COMPARATIVE IP REGIMES AND FASHION DESIGN

While the U.S. has deliberately denied copyright protection to the fashion industry over the past century, other nations have incorporated fashion into their intellectual property systems—and have consequently developed more mature and influential design industries. 

France in particular has treated fashion design as the equivalent of other works 

of the mind for purposes of intellectual property protection. French laws protecting 

textiles and fashion design date back in their earliest form to the ancien re ́gime; 

these laws were subsequently updated and clarified in the early twentieth century. 

As a result, Parisian fashion designers have been able over the course of their careers to develop and protect signature design repertoires, which even after the deVerDate 0ct 09 2002 13:56 Oct 17, 2006 Jkt 000000 PO 00000 Frm 00087 Fmt 6633 Sfmt 6621 G:\WORK\COURTS\072706\28908.000 HJUD1 PsN: 28908
84

7 James Thomson, quoted in J. Emerson Tennent, A Treatise on the Copyright of Designs for 

Printed Fabrics (1841). 

parture of the founding designers can serve as a form of brand DNA for their design 

houses. The formal recognition of fashion design as an art form has thus helped 

maintain the preeminence of the French fashion industry and augmented the lasting creative influence of both native designers and those who have chosen to work 

in France. 

The association between strong intellectual property protection and a successful 

creative industry has not been lost on other countries that sought to support their 

domestic design industries. As long ago as 1840 a British textile manufacturer 

wrote, ‘‘France has reaped the advantage of her system; and the soundness of her 

view, and the correctness of her means, are fully proved by the results, which have 

placed her, as regards industrial art, at the head of all the nations of Europe, in 

taste, elegance, and refinement.’’ 7

While modern French law still offers the most extensive protection to fashion design, Japan, India, and many other countries have incorporated both registered and 

unregistered design protection into their domestic laws. In addition, E.U. law has 

since 2002 provided for both three years of unregistered design protection and up 

to 25 years of registered design protection, measured in five-year terms. 

The global legal trend toward fashion design protection has rendered the U.S. an 

outlier among nations that actively support intellectual property protection, a position that is both politically inconsistent and contrary to the economic health of the 

domestic fashion industry. Congress should take these factors into account when 

considering a reasonable level of legal protection for fashion design. 

IV. THE ROLE OF H.R. 5055

When analyzed in light of the goals of the intellectual property law system, current challenges to the U.S. fashion industry, and international legal developments, 

H.R. 5055 is a carefully crafted legal remedy to the inequities resulting from the 

exclusion of fashion design from copyright law. The bill is narrowly tailored to 

achieve a balance between protection of innovative designs and the preservation of 

the extensive public domain of fashion as an inspiration for future creativity. Perhaps most importantly, it is a forward-looking measure that lays the groundwork 

for the future development of a robust, creative American fashion industry. 

The fashion industry’s decision not to seek full copyright protection, but instead 

to request only a limited three-year term, is particularly appropriate to the seasonal 

nature of the industry. This period will allow designers time to develop their ideas 

in consultation with influential editors and buyers prior to displaying the work to 

the general public, followed by a year of exclusive sales as part of the designer’s 

experimental signature line, and another year to develop diffusion lines or other 

mass-market sales. While many legal scholars have aptly criticized the full term of 

copyright protection as excessive when viewed solely in light of an incentive-based 

rationale, a three-year term chosen after careful analysis of the relevant industry 

is exactly the sort of scheme that ‘‘low protectionist’’ activists have endorsed for 

copyright as a whole. Such a short term of protection will simultaneously encourage 

designers to facilitate affordable access to cutting-edge design and contribute to the 

ongoing enrichment of the public domain. 

The choice to amend the Copyright Act, rather than to modify the design patent 

system or devise a sui generis scheme involving prior review, is also well suited to 

the needs of the fashion industry. The bill appropriately recognizes that the short 

lifespan of new fashions is inconsistent with burdensome legal formalities. Indeed, 

I would suggest that unregistered protection would be even more consistent with the 

U.S. copyright system, existing European design protection, and the needs of the industry, particularly inexperienced designers. Nevertheless, the establishment of registered design protection is an improvement over the current state of the law. 

The language of H.R. 5055, particularly if amended to clarify that only ‘‘closely 

and substantially similar’’ copies will be considered to infringe upon registered designs, is likewise well crafted to both promote innovation and preserve the development of trends. As with other forms of literary and artistic work, copyright law is 

clearly capable of protecting specific expressions while allowing trends and styles to 

form. From a legal perspective, a fashion trend is much like a genre of literature. 

Granting copyright to a John Grisham novel does not halt the publication of many 

similar legal thrillers, nor does the protection of Dan Brown’s DaVinci Code prevent 

a spate of novels involving Mary Magdalene or the Knights Templar from appearing 

in bookstores. When an author writes a bestseller, imitators of his or her style tend 

to follow—but they are not permitted to plagiarize the original. Copyright in this 

85

sense is merely a legal framework that supports an existing social norm; neither 

reputable authors nor creative fashion designers engage in literal copying of one another. 

The level of generality at which fashion trends exist, moreover, is far too broad 

to be affected by the proposed bill. To paraphrase next month’s Vogue magazine, 

currently on the newsstand, red will still be the new black following the passage 

of H.R. 5055. In the same way, common trends such as wide neckties in the 1970s 

or casual Fridays in the late 1990s were not dependent on the presence or absence 

of design protection, nor would such nonspecific ideas ever be subject to intellectual 

property protection. 

In addition to the protective benefits of H.R. 5055, the legislation may have a beneficial effect on creativity in the industry as a whole. Former copy houses, no longer 

able to legally replicate other designers’ work, will be forced to innovate or at least 

transform their work so that it no longer substantially resembles the original products. This in turn can be expected to lead to more jobs for design professionals and 

more reasonably priced choices for consumers. 

At present, the bulk of design-related litigation tends to invoke federal trademark 

and trade dress as well as state unfair competition claims in order to mimic the protections that would be offered by H.R. 5055, with limited success. To the extent that 

fact-based disputes regarding copying continue to arise, the new legislation will permit parties to engage in more straightforward, simpler litigation. Not only will this 

avoid the unnecessary distortion of trademark and trade dress law, but it will also 

clarify the parameters of what constitutes protected design. As in other creative industries governed by intellectual property law, an equilibrium will arise and manufacturers will find it in their best interests to offer retailers innovative rather than 

infringing work. 

H.R. 5055 promises to remedy a historical and theoretical imbalance in the copyright system and to offer protection to the many young American designers whose 

work is currently vulnerable to knockoff artists. For these reasons, I encourage you 

to seriously consider this reform.

Mr. SMITH. Thank you, Ms. Scafidi. 

Mr. Sprigman? 

TESTIMONY OF CHRISTOPHER SPRIGMAN, ASSOCIATE 

PROFESSOR, UNIVERSITY OF VIRGINIA SCHOOL OF LAW 

Mr. SPRIGMAN. Yes, hi. I am Chris Sprigman. I am associate professor of law at the University of Virginia. 

My research focuses on innovation and how innovation relates to 

intellectual property rules. I have been doing this research as an 

academic and I have been working in this area when I was with 

the Department of Justice with the Antitrust Division. I am here 

to try to convince you that H.R. 5055 is both unnecessary and potentially could do harm to this industry. 

Now, the first thing I just want to remind you of is something 

that no one has disagreed with, which is that the fashion industry 

is thriving. We have an industry probably in the U.S. around $200 

billion. We have U.S. firms participating in an industry that is approaching $1 trillion around the world. Never in our 217-year history of copyright has Congress extended copyright or copyright-like 

protections to the fashion industry. 

So we have a 217-year tradition of no copyright in this area. We 

have the enormous growth and flourishing of a competitive, innovative, vibrant industry. Before we go and change that, we should 

have more than a few anecdotes about harm. We should have some 

robust, formal, methodologically rigorous studies of this industry. 

My colleague, Kal Raustiala, who teaches at the UCLA law 

school, and I have begun to try to approach this through an article 

that we have written called ‘‘The Piracy Paradox: Innovation and 

Intellectual Property in Fashion Design.’’ This article will be pubVerDate 0ct 09 2002 13:56 Oct 17, 2006 Jkt 000000 PO 00000 Frm 00089 Fmt 6633 Sfmt 6601 G:\WORK\COURTS\072706\28908.000 HJUD1 PsN: 28908
86

lished in the Virginia Law Review. Many of my comments today 

will refer to that article, and in fact I have submitted it along with 

my written testimony. 

So my first point is that this legislation is entirely unnecessary. 

If you look at the way the fashion industry innovates, that will become clear to you. We are talking about copying, but what the fashion industry does is occasionally copies point-by-point, right? It 

takes a garment and makes a facsimile. 

But mostly what the fashion industry does is it recontextualizes 

it, reinterprets. It takes a design and it adds inspiration to it and 

makes something recognizably similar, but new; substantially similar, so it would be reached under this bill and be unlawful, but 

new. 

The way the industry creates, the way it creates trends, the way 

it induces people to treat clothing as something that they buy seasonally, rather than waiting until it wears out, this is the very 

thing that would be potentially under attack by this bill as currently written. 

Okay. Some of the proponents of this bill have said, well, Europe 

has this protection. If Europe has this protection, why don’t we? 

Professor Raustiala and I have looked closely at Europe. And when 

you look at Europe, you find that, yes, in fact there is an E.U.-wide 

rule protecting fashion designs, but virtually nobody uses it. 

If you look in the registry, it is true, and it reflects what Mr. 

Banks predicts, very few registrations and virtually no major firms 

register anything, and virtually no litigation. It is not as if, in Europe, fashion firms are not copying. In fact, some of the biggest 

copyists are European: H&M, Zara and Topshop, these retailers, 

and European fashion firms that copy and that reinterpret and 

that recontextualize and that create derivative works and do all the 

things that fashion firms do. 

So what do we see in Europe? We see regulation that basically 

hasn’t affected the way the industry actually works. It is unnecessary. 

Okay. You might ask, well, if we see a situation in Europe where 

we regulate, but basically the industry goes on as it has always 

gone on, why shouldn’t we just do this in the States? You know, 

it might not do any good, but it might do any harm. Well, we are 

not Europe. 

Unlike in Europe where there is a weak civil litigation system, 

here in the States we have a very powerful civil litigation system 

and we are a society teeming with lawyers, including obviously a 

class of litigation entrepreneurs that accesses the Federal courts. 

I fear that they will take a look at H.R. 5055 and then they will 

take a look at the way the fashion operates, and they will sense 

a very nice payday coming their way. 

So what we fear is this bill will lead to litigation that breaks up, 

as Mr. Wolfe has described it, the fashion industry’s creative ecosystem that prevents the fashion industry from creating trends and 

inducing demand for new clothes, but makes the fashion industry 

a less competitive, less innovative place, that results in higher 

prices for consumers, that results in less variety being available to 

consumers, and that takes a very good situation and makes it 

worse. 

87

So I would encourage you to think hard about this. I would encourage you to do no harm until someone comes to you with a compelling study of the harm that we see in the industry from lack of 

protection, which I don’t think exists. 

[The prepared statement of Mr. Sprigman follows:]

PREPARED STATEMENT OF CHRISTOPHER SPRIGMAN

My name is Christopher Sprigman; I am an Associate Professor at the University 

of Virginia School of Law. In my role as a law professor, and before that in my career as a lawyer with the Antitrust Division of the United States Department of 

Justice and in private practice, I have focused on how legal rules—especially rules 

about intellectual property—affect innovation. Over the past two years, along with 

Professor Kal Raustiala of the UCLA School of Law, I have spent a considerable 

amount of time studying the fashion industry’s relationship to intellectual property 

law. Professor Raustiala and I have written an academic article on the topic, entitled The Piracy Paradox: Innovation and Intellectual Property in Fashion Design.

This article, which I am submitting along with my written testimony, will be published in December in the Virginia Law Review. The comments I’ll make here today 

will refer to the findings of that article. 

In brief, for reasons I will explain, Professor Raustiala and I are opposed to H.R. 

5055. The Framers gave Congress the power to legislate in the area of intellectual 

property. But for 217 years Congress has not seen the need to extend IP rules to 

cover fashion designs. During that period the American fashion industry has grown 

and thrived, and American consumers have enjoyed a wide range of apparel offerings in the marketplace. We are skeptical that Congress ought to begin regulating 

fashion design now, given the success of the existing system. 

We oppose H.R. 5055 for 3 principal reasons:

1) The fashion industry is not like the music, motion picture, book, or pharmaceutical industries. Over a long period of time, it has been both creative and 

profitable without any IP rules protecting its original designs. Unlike in 

many other creative industries, copying does not appear to cause harm to the 

fashion industry as a whole.

2) Fashion design protection has been tried in Europe and has had little effect. 

Design firms across the Atlantic copy others’ designs just the way they do 

here in the U.S.

3) We fear that a primary effect of H.R. 5055 will be extensive and costly litigation over what constitutes infringement. As such, H.R. 5055 is a lawyer-employment bill, not a fashion-industry protection bill.

In my brief time here let me expand on these 3 points. 

Our first point is that this bill is an unnecessary and unwise intervention 

in the marketplace. The American fashion industry has become a powerhouse in 

the decades since World War II. The industry does business in excess of $180 billion 

per year, and U.S. firms play a substantial role in a global fashion industry worth 

almost $1 trillion annually. In 2005, the fashion industry grew more quickly than 

the economy as a whole, and the industry’s strong recent growth reflects its robust 

long-term performance. According to recent data from the Bureau of Economic Analysis, sales of apparel and shoes have registered uninterrupted annual increases between 1945 and 2004, growing during this period more than twenty-fold. So we see 

growth and profit in the fashion industry, and we also see vibrant competition. New 

designers and companies regularly rise to prominence and compete for the public’s 

attention with innovative new designs. The fashion industry produces a huge variety of apparel, and innovation occurs at such a pace that styles change rapidly and 

goods are produced for consumers at every conceivable price point. In short, the 

fashion industry looks exactly as we would expect a healthy creative industry to 

look. 

The important point here is that all of the fashion industry’s growth and innovation has occurred without any intellectual property protection in the U.S. for its designs. Indeed, never in our history has Congress granted legal protection to fashion 

designs. From the industry’s beginnings copying has been very common both in the 

U.S. and abroad. Designers and fashion commentators were talking about design 

copying back in the 1920s and 1930s. Unsurprisingly, this is not the first time that 

Congress has considered extending the IP laws to fashion designs. But Congress has 

always refrained from making this change to our tradition—wisely, in our view. UnVerDate 0ct 09 2002 13:56 Oct 17, 2006 Jkt 000000 PO 00000 Frm 00091 Fmt 6633 Sfmt 6621 G:\WORK\COURTS\072706\28908.000 HJUD1 PsN: 28908
88

like in the music, film, or publishing industries, copying of fashion designs has 

never emerged as a threat to the survival of the industry. 

Why is that? In our article, Professor Raustiala and I explain how copying and 

creativity actually work together in the fashion industry. This argument is grounded 

in the fact that fashion is cyclical and driven by popular trends. Styles come and 

go quickly as many consumers seek out new looks well before their clothes wear out. 

This is not new: as Shakespeare put it in Much Ado About Nothing, ‘‘The fashion 

wears out more apparel than the man.’’ But the result is that for fashion, copying 

does not deter innovation and creativity. It actually speeds up the rate of innovation. Copying of popular designs spreads those designs more quickly in the market, 

and diffuses them to new customers that, often, could not afford to buy the original 

design. As new trends diffuse in this manner, they whet the appetite of consumers 

for the next round of new styles. The ability to be copied encourages designers to 

be more creative, so as to create new trends that capture the attention of consumers. The existing legal rules also help the industry communicate these trends 

to consumers. In order for trendy consumers to follow trends, the industry has to 

communicate what the new fashion is each season or year. The industry as a whole 

does this by copying and making derivatives that take features of a popular design 

and add new features—this is one of the important ways in which trends are established. 

In sum, it is the preference of consumers for change in clothing designs that 

incentivizes creativity in the fashion industry—not intellectual property rules. Copying simply accelerates this process, intensifying consumers’ desire for new styles, 

and increasing consumers’ willingness to spend on the industry’s next set of design 

innovations. Congress does not need to step in to alter the market and protect producers. Indeed, if Congress acts to hinder design copying, it may succeed only in 

depressing demand for new styles, slowing the industry’s growth, and raising prices 

for consumers. 

Our second point pertains to the E.U.’s experience, which suggests that 

design protection does not affect copying. In 1998 the European Union adopted 

a Directive on the Legal Protection of Designs. European law provides extensive protection for apparel designs, but the law does not appear to have had any appreciable 

effect on the conduct of the fashion industry, which continues to freely engage in 

design copying. 

Some may argue that since Europe has design protection legislation, the U.S. 

should have regulation too. But the European experience suggests precisely the opposite, for two reasons. First, fashion designers have not used the E.U. law very 

much. We have looked closely at the E.U. registry of designs, and very few designers 

and design firms have registered their designs—an act that is a prerequisite for protection under the E.U. law, and would also be required for protection under H.R. 

5055. Second, copying of fashion designs is just as common in Europe as it is here 

in the U.S. Indeed, many large fashion copyists, including large retail firms such 

as H & M, Zara, and Topshop, are European. The law in Europe has had little or 

no effect on copying, or on innovation in the industry. While the E.U. prohibits fashion design copying, the industry continues to behave as it always has—copying and 

making derivative works. 

Although we find the E.U. law has had little effect, we fear that a similar law 

in the U.S. may actually have a harmful effect. This brings me to our third and 

final point. 

Our third point is that while H.R. 5055 is unlikely to do much good, it potentially could cause significant harm. Unlike most countries in Europe, which 

have relatively weak civil litigation systems, we Americans are, for better or worse, 

accustomed to resolving disputes through the courts. As a result, the U.S. is a society teeming with lawyers—including, unlike in Europe, a class of litigation entrepreneurs who turn to the federal courts readily to seek leverage in competitive industries. 

Given our significant differences from Europe in this regard, we fear that H.R. 

5055 might turn the industry’s attention away from innovation and toward litigation. We foresee extensive litigation over the standard of infringement in the proposed bill. Drawing the line between inspiration and copying in the area of clothing 

is very, very difficult and likely to consume substantial judicial resources. But however the lines are drawn, the result will be a chilling effect on the industry. Every 

designer and every firm will be obliged to clear new designs through a lawyer. Individual designers and small firms will be particularly disadvantaged—they are the 

least likely to be able to afford the lawyers’ fees that will be the new price of admission to the industry. Over time, the fashion industry might begin to look more like 

the music and motion picture industries—i.e., dominated by a few large firms. It is 

hard to imagine an industry re-configured in this way producing the same rich variVerDate 0ct 09 2002 13:56 Oct 17, 2006 Jkt 000000 PO 00000 Frm 00092 Fmt 6633 Sfmt 6621 G:\WORK\COURTS\072706\28908.000 HJUD1 PsN: 28908
89

ety of new designs that today’s healthy, competitive fashion industry yields. We believe that the end result of H.R. 5055 could be less consumer choice, fewer opportunities for young designers and small firms to break into the industry, and reduced 

consumption across the board of fashion goods. 

In conclusion, the fashion industry thrives by rapidly creating new designs. Via 

this continuous re-definition of what is ‘‘in style,’’ the industry sparks demand by 

consumers for new apparel. This process results in consumption of fashion goods at 

a level above what would otherwise occur. It also permits many apparel items to 

be sold at lower prices than would be possible were fashion design protected by the 

intellectual property laws. To remain healthy, the fashion industry depends on open 

access to designs and the ability to create new designs that are derivative of them. 

The industry has thrived despite the lack of design protection; we are very hesitant 

to interfere with such success. 

But we also fear that H.R. 5055 may cause harm. In sum, were it necessary to 

impose design protection rules to protect the American fashion industry, we would 

support amending the U.S. Code for the first time in our history to include fashion 

design. But our research suggests that it is not necessary, that we have had the 

right rule for the past 217 years, and that Congress should be content to leave the 

industry to get on with the business of creating innovative new fashions.

90

ATTACHMENT


CS0001.eps
91


CS0002.eps
92


CS0003.eps
93


CS0004.eps
94


CS0005.eps
95


CS0006.eps
96


CS0007.eps
97


CS0008.eps
98


CS0009.eps
99


CS0010.eps
100


CS0011.eps
101


CS0012.eps
102


CS0013.eps
103


CS0014.eps
104


CS0015.eps
105


CS0016.eps
106


CS0017.eps
107


CS0018.eps
108


CS0019.eps
109


CS0020.eps
110


CS0021.eps
111


CS0022.eps
112


CS0023.eps
113


CS0024.eps
114


CS0025.eps
115


CS0026.eps
116


CS0027.eps
117


CS0028.eps
118


CS0029.eps
119


CS0030.eps
120


CS0031.eps
121


CS0032.eps
122


CS0033.eps
123


CS0034.eps
124


CS0035.eps
125


CS0036.eps
126


CS0037.eps
127


CS0038.eps
128


CS0039.eps
129


CS0040.eps
130


CS0041.eps
131


CS0042.eps
132


CS0043.eps
133


CS0044.eps
134


CS0045.eps
135


CS0046.eps
136


CS0047.eps
137


CS0048.eps
138


CS0049.eps
139


CS0050.eps
140


CS0051.eps
141


CS0052.eps
142


CS0053.eps
143


CS0054.eps
144


CS0055.eps
145


CS0056.eps
146


CS0057.eps
147


CS0058.eps
148


CS0059.eps
149


CS0060.eps
150


CS0061.eps
151


CS0062.eps
152


CS0063.eps
153


CS0064.eps
154


CS0065.eps
155


CS0066.eps
156


CS0067.eps
157


CS0068.eps
158


CS0069.eps
159


CS0070.eps
160


CS0071.eps
161


CS0072.eps
162


CS0073.eps
163


CS0074.eps
164


CS0075.eps
165


CS0076.eps
166


CS0077.eps
167


CS0078.eps
168


CS0079.eps
169


CS0080.eps
170


CS0081.eps
171


CS0082.eps
172


CS0083.eps
173


CS0084.eps
174


CS0085.eps
175


CS0086.eps
176


CS0087.eps
177


CS0088.eps
178


CS0089.eps
179

Mr. SMITH. Thank you, Mr. Sprigman. 

Mr. Banks, let me direct my first question to you. You have just 

heard Mr. Sprigman say, and we have heard others say as well, 

that there is a concern about the increased litigation that would 

come, and the difficulty of determining what is original, shall we 

say. 

It occurred to me, and I have a couple of slides I want to put up 

in a minute, but it occurred to me that what is to prevent someone 

from, for instance, seeking to copyright men’s striped shirts and 

just changing the width of a stripe or the distance between the 

stripes a centimeter or less, and copyrighting every manner of 

striped shirt? 

And also, I want to put, if you can, I think we are prepared to 

do so, put up a couple of visual aids here. You have, for lack of another word, let me call it a polka-dot dress. You have the real thing 

on the left and the knockoff on the right. Here you have a difference in the size of the diameter of the polka-dots, for example. 

How are you going to copyright something that can be replicated 

but not exactly duplicated? Is that not going to lead to an excess 

in litigation? 

Mr. BANKS. Well, first of all, Mr. Chairman, if you look at the 

slides of the two dresses that were shown, they are not a copy of 

each other. The one dress by Diane von Furstenberg has a capsleeve. It is a wrap-dress. The other dress is a slip-dress silhouette. 

The size of the polka-dot is different. In fact the space between the 

dots is different. It is a different bracket print. They are both similar polka-dots, but they are not the same. 

Mr. SMITH. Suppose the polka-dots on the knockoff, just like the 

striped shirt I described, were a millimeter smaller in diameter. 

Would that present a problem? 

Mr. BANKS. Well, first of all, you would be talking about prints, 

and you can already register a print. That is an original design 

that already you can register. Prints in the home furnishings area, 

prints in the fashion design area are textiles that can be copyrighted. So we are not really talking about that with this bill. We 

are not talking about commonplace design either. The jean jackets 

that David showed us, that is something that is commonplace. 

Mr. SMITH. So the striped shirt would be considered to be commonplace, for example? 

Mr. BANKS. Exactly. Anything that went before, that went on in 

fashion before this bill would not be represented, whether it is a 

white buck shoe or seersucker suit or a spaghetti strap dress. 

Mr. SMITH. In the case of the polka-dot dress or even a striped 

shirt, wouldn’t a court find that they are substantially similar and 

therefore a violation of copyright, or not necessarily? 

Mr. BANKS. I don’t think they would necessarily do that. 

Mr. SMITH. Okay. 

Mr. Wolfe, you decried sort of the lack of originality. In one sense 

that is easy to say because I certainly could not design anything 

that I have seen, and therefore I would consider someone who 

could to be designing something very original. Why do you not 

think at a design can in fact be original if we haven’t seen it before? 

180

Mr. WOLFE. I think because the materials involved have been 

around for centuries. We are talking about fabrics, scissors, needle 

and thread encasing the human body. Oscar de la Renta once said 

something to me that I think is worth repeating. He said, ‘‘All we 

can do is go in and out and up and down over and over and over.’’ 

I don’t think anyone in this room is wearing anything that we cannot trace through fashion history and find its derivation. 

Mr. SMITH. But they would say they are not trying to copyright 

trends, and you are talking about trends. 

Mr. WOLFE. Oh, no, I am talking about just the reality of the fact 

that it is impossible to create a new design. It is possible to create 

a new textile, a new print, but la new design is almost impossible 

because all we are doing in creating a new one is putting together 

existing elements in a different way. 

Mr. SMITH. It sounds as if you are saying there is nothing new 

in the world. That reminds me of someone who said at the turn of 

the century that everything that had been invented had already 

been invented, or all the patents had already been filed. You don’t 

think someone could come up with something that is not a result 

of prior effort? 

Mr. WOLFE. Not in terms of garment design that human beings 

wear made out of fabric, needle and thread. When we move to 

spray-on clothes, great. [Laughter.] 

And we may. 

Mr. SMITH. Thank you, Mr. Wolfe. Okay, I appreciate it. 

Ms. Scafidi, you mentioned I believe in your written testimony, 

but not necessarily in your oral testimony, that you thought this 

legislation might be too broad in some of its wording. Would you 

go into that in a little bit more detail as to how it might be narrowed to better achieve the task that it tries to accomplish? 

Ms. SCAFIDI. Certainly, Mr. Chairman. I think that we are all in 

favor of trends. I think that it is marvelous that Mr. Wolfe is in 

the business of identifying and selling trends, and therefore de-emphasizing the originality of his clients so that they will keep buying 

his trends. 

I think that it is important, therefore, in this legislation for the 

industry in general to continue protecting trends. I understand 

that Congressman Goodlatte has proposed language suggesting 

that we say that only closely and substantially similar garments 

will be infringing, those that in their overall appearance are closely 

and substantially similar to one another. I think that is a wonderful idea. 

Mr. SMITH. Do you think that that is a narrow enough definition 

itself? I can see a lot of courts coming out with different results 

from that definition. 

Ms. SCAFIDI. I think it echoes what we do in copyright generally. 

I think that a court asked to compare two paintings or two sculptures would engage in a similar process. I don’t think we should 

go as far as Mr. Sprigman suggested would be an improvement, although not a recommendation of his, and say that only line-for-line 

copies should be protected, the reason being a clever copyist can 

move one button or raise a hemline and claim that it is an entirely 

new garment. 

181

Mr. SMITH. You are not saying Mr. Sprigman sees the world in 

black and white instead of color, are you? [Laughter.] 

Ms. SCAFIDI. I wouldn’t presume to comment on Mr. Sprigman’s 

eyesight. [Laughter.] 

But no, I do think that that language, ‘‘closely’’ and ‘‘substantially similar,’’ is perfectly consistent with the rest of copyright. 

Mr. SMITH. Okay. Thank you, Ms. Scafidi. 

Mr. Sprigman, you say in your testimony that copying does not 

cause substantial harm, and yet it seems to me that the damage 

done by knockoffs can be quantified. Perhaps it is $12 billion or 

perhaps it is some other figure, but why don’t you believe that 

knockoffs actually do create harm, do cost the originators profits, 

and undercut the market? 

Mr. SPRIGMAN. Sir, the question with knockoffs is always not is 

someone harmed. Someone is harmed. The question is whether the 

industry in the aggregate benefits. The paradox here, the reason 

we titled the article The Piracy Paradox, is that the same thing 

that causes individualized anecdotal harms causes systemic, economy-wide benefits. 

It is the way the ecosystem works. In every competitive ecosystem, and of course in this country we prefer competition, right? 

We view competition as the mainspring of our economy. We introduce IP rights when we think there is a problem with innovation, 

and we need to incent innovation. 

But there is no problem with innovation here. The ecology that 

we have, the creative system that we have in the fashion industry, 

incentivizes innovation. There are many more fashion designers entering this business than there are new record companies or new 

film studios. This is a much more competitive and open industry. 

Mr. SMITH. Let me go back. Did you say the industry you felt 

was harmed, but the economy was helped? 

Mr. SPRIGMAN. No, I don’t think the industry is harmed. I think 

the industry is helped. 

Mr. SMITH. But aren’t individuals harmed if their profits lower 

as a result of the knockoffs? 

Mr. SPRIGMAN. Individuals are harmed by point-by-point 

knockoffs. Individuals may be harmed or helped by reinterpretations depending on whether those reinterpretations reflect well on 

their original design. It is a mix. But the industry as a whole depends on this ability to create trends, and by creating trends, that 

is how they sell so much fashion. 

So there is a huge benefit, huge benefit to the way we do things 

now and the way the industry does things now. Before you put that 

huge benefit at risk, I would want to know whether this $12 billion 

has anything to do with design copying or whether this is in fact 

trademark infringement for which we already have remedies. 

Mr. SMITH. Okay. Thank you, Mr. Sprigman. 

The gentleman from California, Mr. Berman, is recognized for his 

questions. 

Mr. BERMAN. Well, it is obvious for anyone with good eyesight, 

fashion and style is not my strong suit. I am trying to, I looked at 

the picture of those two dresses up there and apparently no one 

says that would infringe, the knockoff, if that is what it is, it 

looked to me sort of like two different types of dresses. 

182

Mr. SPRIGMAN. I say it. 

Mr. BERMAN. Yes? 

Mr. SPRIGMAN. I say it. It would potentially infringe if you pass 

this law. The substantial similarity standard in the law potentially 

would make the second an infringement of the first. 

Mr. BERMAN. And why is it substantially similar? 

Mr. SPRIGMAN. In my copyright classes, I spent a long time on 

this with my students. The substantial similarity standard is not 

limited to copying. 

Mr. BERMAN. I need the Cliffnotes. 

Mr. SPRIGMAN. Yes, the Cliffnotes is that any substantial use of 

an element of the original design could result in a finding of infringement. So think of it in the music context. Do you know the 

song, ‘‘He’s So Fine’’? Right? Well, the George Harrison song, ‘‘My 

Sweet Lord’’ was determined to be substantially similar to ‘‘He’s So 

Fine.’’

If you know these two songs, it doesn’t immediately pop into your 

head that those are copies. George Harrison wasn’t copying. He 

was hearing something in his head and he was recontextualizing 

it, and it came out a completely different song, but that is substantially similar because of those five notes that are appropriated. 

If you look at visual cases and film cases, substantial similarity 

standard proscribes, prohibits, makes unlawful small——

Mr. BERMAN. Was there an infringement in that music case? 

Mr. SPRIGMAN. Yes. And that was considered to be an easy case. 

So the substantial similarity standard, as it has developed in the 

courts, has nothing to do with exact copies. It has to do with taking 

inspiration, which is what the fashion industry does. This bill addresses and makes unlawful what they do. 

So where this is going to end up, I mean, I can’t tell you that 

this is going to wreck the fashion industry, but it puts their creative process under threat. You know, to see in color, you have to 

see the complexity of the creative process. And the complexity of 

the creative process has resulted in a big thriving industry. 

Mr. BERMAN. Well, I would like to hear the other witnesses, Mr. 

Banks and Professor Scafidi perhaps, address this question. 

In books and music, maybe not so much as I would think, but 

in books and music you could talk about words and notes and the 

extent to which they are the same. But with fashion design, what 

aspects, assuming this is law, what aspects must be compared? Is 

it simply if the appearance is similar? Do you look at the type of 

fabric, the type of stitching? 

It seems to me if it is as narrow as exactly the same, then you 

simply reward the person who puts the zipper or something in a 

slightly different place, and you really don’t get anything from the 

bill, but when you start getting these more general standards, what 

is the analysis a court is going to take in looking at this? 

Mr. BANKS. Well, Mr. Berman, I would think a perfect example 

of blatant out-and-out copying is something that I think almost everybody in this room would be very familiar with. 

Mr. BERMAN. Even me? 

Mr. BANKS. Even you. 

Mr. BERMAN. Okay. 

183

Mr. BANKS. In the springtime, there is something called the 

Academy Awards, which is also known as the greatest fashion 

show in the world because we spend an inordinate amount of time 

in front of our television sets, maybe for an hour before the Academy Awards starts, watching the actors and the people who are associated with the film business coming in on the red carpet and 

seeing what they are wearing, and having different interviewers, 

Joan Rivers, et cetera, asking, whose dress are you wearing?; who 

made that for you?; where did you get that dress? 

Within days, usually 2 days after the Oscars, you can turn on 

Good Morning America or the Today Show and you can see interviewers with manufacturers in this country with line-for-line copies, and they credit the designer who designed those dresses. This 

is the Zac Posen dress, or this is the Bill Blass dress. But they 

have line-for-line copies at a fraction of the cost of the original, 

which they will be shipping to department stores in this country 

by the end of that week. 

Now, the designer who designed that dress, whether he is a European designer or she is a European designer or an American designer, is not benefiting from that. The only person who is benefiting from that is that copyist. 

Mr. BERMAN. Let me just challenge that for a second, because I 

bet those designers at least have their assistants watching those 

shows hoping that their name will be mentioned by whoever is on 

that morning show 2 days later talking about it. I mean, there is 

something about being mentioned that is worth something. 

Mr. BANKS. There is something about being mentioned, but that 

doesn’t sell that dress. 

Mr. BERMAN. That business we are in. 

Mr. BANKS. That doesn’t sell your dress. That sells your personality as a designer, but that doesn’t sell your dress. 

Mr. BERMAN. But it may make your next design more valuable. 

Mr. BANKS. It might. It might. Case in point, a few years ago a 

totally unknown designer named Olivier Theyskens designed a coat 

for Madonna to wear to the Oscars. Now, people came up to her 

and said, whose dress is that? And she said Olivier Theyskens. 

They had never heard of that designer. He was a young kid, 22, 

21 years old. 

Yes, that made him, that made him as a designer, and he was 

able to get from that, you know, a very interesting contract with 

a big French house. But having that garment knocked off when he 

couldn’t even get it made in time to sell to stores does not help his 

cause. 

Mr. BERMAN. Am I out of time? 

Mr. SMITH. The gentleman is recognized for an additional 

minute, both to finish his question and to yield me time when he 

finishes. 

Mr. BERMAN. Okay. The displacement issue, the very close copy 

that appropriately would be covered by this kind of a bill, maybe 

not what we saw on the screen, but something else. 

First, will the people who could afford the outfit, the coat that 

Madonna wore, will they be buying those? Like, maybe the reason 

they could afford Madonna’s coat is because when they have a 

184

chance to buy something like that coat for 10 percent of the price, 

they buy it, and that is how they get rich. 

In other words, what are the economics of the displacement? Are 

all those knockoffs creating a whole new world of buyers and giving 

some prestige to the designer without any loss to the designer? 

Mr. BANKS. I wouldn’t say there was no loss to the designer. I 

definitely don’t feel that if the designer is just getting the credit for 

having designed the dress, when the designer can’t even get the 

dress made, shown to his buyers in time, and through the manufacturing process of creating something that is original——

Mr. BERMAN. Is that what is going on? Is that what is going on? 

Mr. BANKS. Yes. 

Mr. BERMAN. The knockoff is coming out so quickly that the designer never gets the much more expensive dress for the much 

more expensive stores even made because those stores know that 

that knockoff is going to be——

Mr. BANKS. And they would be reluctant then to buy the dress 

if it has already been knocked off. 

Mr. SMITH. Would the gentleman yield? 

Mr. BERMAN. Sure. 

Mr. SMITH. I want to return, Ms. Scafidi, to a subject that we 

talked about a while ago, and run a phrase by you. We talked 

about some phrases that have been suggested as a standard. 

If we used, instead, ‘‘virtually identical’’ as a way to describe the 

item or copyrighted item or a knockoff, would that be a better test 

because that has a history in copyright law already that has been 

somewhat established? Obviously, it is a little bit more narrow definition, but wouldn’t that help solve some of the problems that we 

confront? 

Ms. SCAFIDI. Chairman Smith, I would be very uncomfortable 

with the idea of using the phrase ‘‘virtually identical.’’ Mr. Berman 

suggested that a clever copyist could just move a zipper a little bit 

and thus be outside any kind of reach of this law. I worry that that 

is exactly where ‘‘virtually identical’’ would take us. 

I would also remind you all, with respect to the ‘‘substantially 

similar’’ standard, which I have been teaching for about a decade 

now, which is a really long time now that I think about it, that it 

is not as flexible and as extreme as Mr. Sprigman would suggest. 

In fact, the music industry has not been destroyed by cases like 

that one, and in Europe the fashion industry has not been destroyed by the application of similar standards. 

Mr. SMITH. Okay. Thank you, Ms. Scafidi. 

We made an exception a few minutes ago and allowed Mr. Goodlatte, for the reasons explained, to ask question out of order. We 

are going to make another exception, and I am going to recognize 

the gentleman from Massachusetts, Mr. Delahunt, for some questions, even though he is not a member of the I.P. Subcommittee, 

but because he is an original cosponsor of the legislation. This is 

a one-time-only exception to the general rule and not setting a 

precedent. 

He will be recognized for his questions. 

Mr. DELAHUNT. I thank the Chairman. 

I have a number of questions, and some I will submit in writing, 

again with the forbearance of the Chair. 

185

I would like to pose some questions to Professor Scafidi. Mr. 

Sprigman is concerned about the lawyers and a subculture, if you 

will, that will see opportunity here. Although I think it was yourself or Mr. Banks that said that the lack of litigation in the E.U. 

underscored the fact that the E.U. rule served as a deterrence. Can 

you describe for us the regimen in the E.U. and its application? 

Ms. SCAFIDI. Absolutely. Mr. Sprigman has said that designers 

in the E.U. don’t take advantage of the protections available to 

them. That is actually inaccurate. First of all, designers in the E.U. 

automatically have 3 years of unregistered design protection. Moreover, a large number of them continue to register to get longer 

terms of protection anyway, terms of up to 25 years under the E.U. 

registered design right. 

In fact, 4,013 designs for clothing were registered in 2004; 5,426 

in 2005, numbers substantially larger than those suggested by Mr. 

Sprigman, and about half that much again for fashion accessories. 

So we do have a large number of registrations taking place. 

Concurrently, we have a very small amount of litigation. Why is 

that? I think it is because these registrations and the unregistered 

design protection, together serve as a deterrent to would-be copyists. In fact, it forces those copyists to innovate so that we actually 

get more innovation in the fashion industry as a whole. So I think 

those two elements work together very nicely. 

Mr. DELAHUNT. Thank you, Professor. 

Let me direct this question to Mr. Banks. I notice that although 

the Copyright Office said that the bill before us provides a sound 

basis for legislation to protect fashion designs, and that while there 

may be merit, the fashion design should be given protection. The 

office has, at least at this stage, not been provided with sufficient 

information to come to a conclusion on the need. 

I am aware of the fact that you and your colleagues have had a 

series of discussions with the Copyright Office. Was the case presented there for protection? 

Mr. BANKS. The reason that we wrote to the Copyright Office 

was to find out if it would be feasible to, and a sort of ready way 

to make copyrights, or rather registration of designs through that 

office. Following the European system, which is to take a digital 

picture of the design, front and back; have that digital picture emailed to the Copyright Office; and then it would be registered. It 

is just that simple. A fee would be paid. It is not obstreperous. It 

is not a difficult thing to do. It is not particularly time consuming. 

That was what we approached the Copyright Office about. 

Mr. DELAHUNT. Let me just ask one final question here. Do you 

have a concern, and I think the catalyst of the concern is the reality of electronic commerce, the advent of the Internet has 

changed, if you will, the need for design protection. I think as Mr. 

Sprigman talked about 217 years of a tradition, well obviously the 

Internet is a rather recent innovation. 

I have a concern, and tell me if it is a legitimate concern, that 

since the E.U. has this regimen, this regime of protection, I don’t 

want you running over to Europe and incorporating over there and 

further exacerbating our trade balance. 

Has anyone in the industry, you know, what is the buzz in the 

industry in terms of if we see an enhancement of, we see an inVerDate 0ct 09 2002 13:56 Oct 17, 2006 Jkt 000000 PO 00000 Frm 00189 Fmt 6633 Sfmt 6601 G:\WORK\COURTS\072706\28908.000 HJUD1 PsN: 28908
186

crease in terms of the billions of dollars of piracy, is there a potential for an exodus of American fashion designers to go to Europe 

and receive the protection under the E.U.? 

Mr. BANKS. Well, I would say a perfect example of an American 

designer flourishing in Europe is Marc Jacobs, who designs for 

Louis Vuitton, which has a multimillion-dollar business. 

Louis Vuitton registers up to 80 designs per season of just accessories alone designed by Marc Jacobs for Louis Vuitton. That is 

just bags, shoes and other accessories. That doesn’t even include 

the ready-to-wear. 

They do a registration of 80 styles per season, and he is a designer who, with the backing of Louis Vuitton, helps pay for his 

business here in America, his Marc Jacobs business located here in 

America. 

Mr. DELAHUNT. Thank you, Mr. Banks. 

Mr. SPRIGMAN. Mr. Delahunt, I would like to be given a chance 

to respond. 

Mr. DELAHUNT. We don’t—the rules here are that we ask the 

questions. 

Mr. SPRIGMAN. Mr. Chairman, I would like to respond. 

Mr. SMITH. The gentleman is recognized for an additional minute 

so that Mr. Sprigman can respond. 

Mr. SPRIGMAN. Well, I have done some research on the rate of 

registration in Europe. I have actually looked at the databases. Between January 1, 2004 and November 1, 2005, we have 1,631 registrations. Of those, many, the majority are nothing more than 

plain T-shirts, jerseys, sweatshirts with either fixed trademarks or 

pictorial works. These are registrations that are made to protect a 

trademark, which is already protected. These are not major registrations for the most part made to protect designs. 

We see no evidence of any substantial number of registrations by 

any major design firms. Most of the registrations that we see are 

from fast-fashion firms like StreetOne, which has about one-third 

of all the existing registrations during this period. So we don’t see 

this database being used, and reality backs us up. 

We don’t see the lawsuits. And the copyists in Europe thrive just 

as well as they do here. Topshop, Zara, H&M, these are fast-fashion firms that are often said to take inspiration, and designers do 

the same thing, so no working difference in the way the industry 

operates. 

Mr. SMITH. The gentleman’s time has expired. 

We will go to the gentleman from California, Ms. Issa, for his 

questions. 

Mr. ISSA. Thank you, Mr. Chairman. 

Ms. Scafidi, who made your outfit you are wearing today? 

Ms. SCAFIDI. Narciso Rodriguez, an American designer who has 

in fact been copied and has suffered losses from that copying, probably not of this suit, but of a much more unique gown and several 

other of his items. 

Mr. ISSA. And, you know, always on these Committees, at a hearing you kind of look at who is for and against the bill and so on, 

but in this case, I am sort of looking at academia and the legal profession versus the folks that have to try to make this thing work 

for designers, but I am concentrating on you first. 

187

From a constitutional law standpoint, and I keep it as simple as 

can be and so did the founding fathers, it said to promote the 

progress of science, well, scratch that out, and useful arts, we will 

assume that applies, by securing for limited times to, and we will 

scratch out ‘‘authors,’’ and say ‘‘inventors.’’

Now, a dress designer is an inventor by anyone’s standard, and 

I think dresses are clearly, let’s be honest, it’s art. Otherwise, we 

would all be wearing something that looks like the Russians wore 

during the Soviet period or worse. Clearly, there is a constitutional 

obligation for us to secure for a limited period of time for these creations. I guess the question is, how are we meeting that standard 

if not for this type of legislation? 

This legislation does not, although, you know, we are certainly 

talking about promoting commerce, this is not promoting commerce 

in the statute. This is a protection that promotes people inventing. 

It has nothing to do with whether or not we are promoting their 

financial well being. We are simply incentivizing them to have the 

pride of inventorship for a limited period of time, which sometimes 

people miss, and they assume they have to be commercially make 

it viable. 

Well, in patents you don’t have to be able to market the product 

and make a bloody penny. You have a right for 20 years from invention to keep it to yourself. Would you agree with that? 

Ms. SCAFIDI. I would agree that there is a constitutional obligation, and moreover that it is to the benefit of the American economy to incentivize and to protect these young designers. Mr. 

Sprigman has said that there is no harm to the industry even if 

there is harm to individuals. Individuals are the industry and it is 

a loss of human capital and a personal tragedy when designers are 

driven out of business because they are copied. 

Mr. ISSA. Now, with all due respect to the laymen here, your outfit looks very classic to me. 

Ms. SCAFIDI. Thank you. [Laughter.] 

Mr. ISSA. It looks less classic. However, it certainly seems to 

have inspiration that dates back well to black and white movies 

and to early color. Would you agree? 

Ms. SCAFIDI. I would agree that particularly in the area of more 

formal wear, men’s and women’s, you have a greater degree of 

standardization than you do in the more fanciful clothing that a 

woman might wear in the evening, for example. 

Mr. ISSA. So men are at a considerable disadvantage, unfortunately, on the whole of really appreciating this. I dress to be proven 

no exception. But if I understand basically the bill, not the nuances 

we may change in a markup, but basically the bill, we want to give 

3 years of broad protection to those who create, while leaving 100 

years or more of fashion to inspire the copycats. 

Anyone on this panel want to disagree with the basic intent of 

the bill? 

Mr. SPRIGMAN. Oh, yes. 

Mr. ISSA. Well, we will let you wait for a second. Anyone else 

want to disagree with that? 

Mr. WOLFE. I have such a problem with the bill because——

Mr. ISSA. No, no, no. The intent—I am thrilled to death to talk 

about modifications, but then is there anything wrong with in fact 

188

a very limited period of time, much more limited than other pieces 

of art. Let’s be honest, Mickey Mouse and Donald Duck get 100 

years more or less of protection for a drawing. Right? 

Mr. WOLFE. Right. 

Mr. ISSA. Okay. And I am an inventor with 37 or so patents that 

are still worth something, and I get either 17 years from granting 

or 20 years from application, depending upon when I did them. We 

are talking a fraction of that. 

Is there anyone that says that the basic intent of this bill is inappropriate? I think you don’t like the bill, but you don’t say the intent is inappropriate. You have said sort that it is already being 

met, right? 

Mr. WOLFE. I think it is impossible because the bill is predicated 

on the fact that fashion design is original and it is not. So that is 

where it is stuck. It is not an invention. 

Mr. ISSA. We will take it as, you know, the Mona Lisa is already 

settled. The question of women’s smiles, and that everything else 

is not original for a moment, and we will accept that that is your 

position. 

My time is expiring, but you were so animated, Mr. Sprigman. 

In short, because it is limited, what is it that is inherently wrong, 

not unachievable in your and Mr. Wolfe’s opinion, but what is inherently wrong with this fraction of the time that we give to pieces 

of electronics like mine or works of art like a drawing of Mickey 

Mouse or Donald Duck? 

Mr. SPRIGMAN. Because fashion is not music and it is not film. 

It has its own particular innovation dynamic which should be respected because it works. And this bill takes that innovation dynamic and applies rules to it which aren’t going to do any good and 

may do it some harm. So if your intent is to help, leave it alone. 

Mr. ISSA. So you, just to summarize, you are saying that protection is fine, but the rules are wrong in this bill. 

Mr. SPRIGMAN. No. I am saying that you protect the industry by 

letting it alone. If you want to regulate it, you are likely to do it 

harm. This is not film. This is not books. This is not music. 

Mr. ISSA. Mr. Chairman, I would just close by saying that in fact 

we protect individuals, not some industry and we are here today 

to talk about individuals protected under the Constitution. 

Thank you, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Issa. 

I am going to recognize additional Members who are here for 

their questions, but I also want to remind the other Members who 

are present that we had intended to mark up a bill at 10:30, and 

I would like to conclude our hearing as quickly as we possibly can. 

The gentlewoman from California, Ms. Waters, does she wish to 

be recognized for questions? She is. 

Ms. WATERS. Thank you very much, Mr. Chairman and Members. I would like to thank our panelists for being here today. 

The first question that I have is I want to know from Mr. Jeffrey 

Banks whether or not there is a consensus in the industry wanting 

protection and basically in support of this legislation? 

Mr. BANKS. I would say yes, there is, certainly among designers 

I am associated with and designers that I have spoken with. I am 

on the board of the Council of Fashion Designers of America which 

189

represents almost 300 designers, men’s wear, women’s wear, accessory designers, fabric designers, not only in New York, but across 

the country. 

And when we told them that we were going to be working on this 

bill, I got a plethora of e-mails supporting not only the idea of the 

bill, but also supporting, and telling me that they have in fact been 

copied on many occasions. I would say from my point of view and 

from the point of view of my colleagues that I have spoken to, there 

is a groundswell of support for this bill. 

Ms. WATERS. Thank you. 

Mr. Sprigman, you are an associate professor at the University 

of Virginia? 

Mr. SPRIGMAN. Correct. 

Ms. WATERS. Why do you believe that your knowledge and background should supersede the wishes of the industry? Why do you 

think you know more than they do? And what is unique about you 

and your knowledge that could convince us that someone who is 

not in the creative industry understands it better than the designers? 

Mr. SPRIGMAN. Sure. The designers design clothes. I study innovation. So I don’t claim to be a better designer or clothes. I also 

don’t claim to be a fashion design expert in the sense that I am 

not here to tell you, you know, what designs are inspired by others 

in particular ways. 

But what I do know, and what I have researched for a long time, 

and my training gives me expertise in, is how firms innovate. If 

you look at the way firms innovate, if you go shopping, which everybody does, you will see lots and lots of clothes that are working 

this season and every season off the same design themes, powerfully common-sensical. 

Why are these clothes working off the same design themes? Because in the last few months, as runway shows have happened and 

as the fashion press has talked, designers and the industry have 

identified some themes that they think are going to be this year’s 

trends and they copy them. 

Ms. WATERS. If I may interrupt you for a moment, I am trying 

to follow your argument, but let’s take a look at Diane von 

Furstenberg’s dresses. 

Mr. SPRIGMAN. Sure. 

Ms. WATERS. Of course, that design has been around for many, 

many years, and a lot of people have copied the design. Many of 

those who copied the design do it badly. They do it poorly. The 

dresses don’t fit. As a matter of fact, they use very cheap material 

in some of the dresses; the patterns that they choose are an insult 

to the work that she has done. And people think they are getting 

the same thing, and then they get disgusted when they take this 

product home. 

I think there is probably something called pride in your work, 

and you don’t want it to be undermined by those who would do it 

poorly, do it badly and have people think it is all one and the same. 

What do you know about that? 

Mr. SPRIGMAN. I would ask what Congress knows about that. My 

suggestion would be that that argument for putting Congress in 

190

charge of quality control in the fashion industry is not particularly 

one I am attracted to. 

Copyright law in the United States is there to incent individuals 

to engage in innovation. In the fashion industry, we have high levels of innovation because we have the ability to take inspiration, 

designers have the ability to feed from one another’s work. That is 

the source of inspiration. If you want to dam up that source, go 

ahead. 

Ms. WATERS. Well, you asked what does Congress know about 

that. Well, when we talk about women’s fashion and design, fortunately there are a lot of women in Congress now. We know a lot 

about it. We shop. We buy these labels. We understand I think 

more than a professor from the University of Virginia who comes 

and gives us an intellectual argument about creative product. 

And so I don’t think designers in this industry are trying to legislate in the field of law. None of them would try and determine a 

lot about your business. And while I have great respect for the fact 

that you have worked here in Government, to be so adamantly opposed to what the designers want, while there is a consensus, and 

then to make the case that your profession will exploit it by bringing in too much litigation is just not something that I can, you 

know, receive here very lightly. 

And let me just say, this is just for 3 years. The protection is just 

for 3 years, not 10 years, not 25 years, not 50 years. I don’t think 

the argument that you make about litigation and how it is going 

to explode and your profession is to exploit this opportunity really 

holds water here. 

I yield back the balance of my time. 

Mr. SMITH. The gentlewoman yields back the balance of her time. 

Thank you, Ms. Waters. 

The gentleman from Florida, Mr. Keller, is recognized for his 

questions. 

Mr. KELLER. Thank you, Mr. Chairman. 

My wife just made me go see ‘‘The Devil Wears Prada.’’ [Laughter.] 

I observed that Meryl Streep was even meaner and tougher than 

Sensenbrenner. [Laughter.] 

That fully exhausts my knowledge of the fashion industry, and 

I will yield back the balance of my time. 

Mr. SMITH. Thank you. [Laughter.] 

Thank you, Mr. Keller. Your incisive and brief comments are appreciated. 

The gentleman from California, Mr. Schiff, do you have questions? If so, the gentleman is recognized. 

Mr. SCHIFF. I do, Mr. Chairman, although I have to confess I 

don’t know much more about fashion than Mr. Keller. I wore a 

seersucker suit for the first time yesterday, and people asked me 

for a scoop of ice cream. [Laughter.] 

I wanted to ask whether there are any unique challenges posed 

by intellectual property protection for fashion in the sense that will 

it present questions of first impression for the examiners in this 

area or the potential litigants in this area about whether design is 

sufficiently unique and innovative to qualify for protection, or to 

have been copied? 

191

I assume if a designer comes out with bell-bottoms, that is not 

intellectual property protected, but at what point do those bell-bottoms become stylistically individualistically distinct enough to warrant protection? Is this different in-kind than other issues that we 

have wrestled with in this area? Or is it something we have a lot 

of experience in by analogy? 

And the second question I had is, if you could comment a little 

bit, I know there is a difference of opinion on how successful protection has been in Europe, and I would be interested to hear more 

of your thoughts on that subject. Whoever would care to comment. 

Ms. SCAFIDI. Yes, I think that there is very little difference in the 

way that a court or any other trier of fact would approach the question of whether two fashions are different, or whether something 

is part of a trend. There is a huge public domain of fashion. Everything that has ever been made is currently now in the public domain. 

And if we make the analogy to an area like novels and publishing, when you have a John Grisham come along and write a 

legal thriller and it becomes a bestseller, all of a sudden the publishing industry is very excited about legal thrillers and we get a 

spate of legal thrillers published. None of those authors can plagiarize John Grisham and any court that had to compare an alleged 

plagiarism would be able to compare the two the way they would 

compare two paintings or anything else. 

So it is not that difficult or that different an approach in this 

area. And so I don’t think it would raise those kinds of issues in 

a difficult way. 

Mr. SCHIFF. With a novel, you can compare how many characters 

are the same, how many passages are word for word. With a design, are the facets of that design so unique that they can be identified that way? I suppose if you have a yellow lapel and you have 

another yellow lapel, is that equivalent to having a sub-plot that 

is the same? 

Ms. SCAFIDI. Fashion is a visual medium like sculpture or painting. And it has its own system of recordation of elements. We have 

words to describe lapels. We have a color system to describe shades 

of colors. An expert in the field would have no difficulty making 

those very specific comparisons using the notion of the industry in 

which we are not all literate, but we all have a sense of how it 

works. 

When a fashion magazine like Marie Claire publishes an original 

and a knockoff next to one another, the public recognizes that that 

is a knockoff, whether or not it is a literal line-for-line copy or 

whether it is something that is substantially similar. 

Mr. SCHIFF. Would anyone else like to express a contribution? 

Mr. BANKS. I would also like to say, designers don’t create 

trends. Trends are remarked on by people such as my colleague 

next to me. That is what he does. He goes out. He looks at the market. He looks at what designers have done, what manufacturers 

have done. 

If he sees that there is a recurring theme such as the color black 

or short lengths, he makes the decision that that is a trend. He 

along with his other colleagues like fashion editors and buyers for 

stores, they see the prevalence of short lengths or of the color black 

192

or of sequins and they say that the trend for this fall is black sequined short dresses. 

Designers do their own thing creatively and sometimes there is 

a similarity because we all go to the same fabric resources or we 

all are inspired by the same films, or we all travel to the same art 

exhibitions. 

Mr. SCHIFF. Which way does that cut, though? I mean, that 

seems to say there is going to be a merger of fashion in a certain 

direction which would make it more difficult, potentially, to distinguish one from another. 

Mr. WOLFE. I think it makes it impossible. I think that is the 

problem. I think the major problem is that there is nothing new 

about black, there is nothing new about sequins, there is nothing 

new about short. So how can the first designer of the season who 

makes the black short sequined dress, is that the one that gets protected and no one else can make another? Everything is in public 

domain in fashion. Everything. 

Mr. SPRIGMAN. There is an example in our paper. 

Mr. SMITH. The gentleman’s time has expired. You will, without 

objection, be recognized for an additional minute. 

Mr. SPRIGMAN. There is an example in our paper in spring 2005 

of something called the ‘‘driving shoe,’’ which is a shoe that has—

it is like a moccasin, and it has a sole that runs up the back. So 

it is a rubber sole that runs up the back. 

And suddenly in spring 2005, if you walked into Nordstrom, you 

saw a table in the Nordstrom that I walked into right here in D.C., 

you saw a table, and around the table were about 40-some-odd 

versions of this driving shoe. And they are all different, right? 

Mr. SCHIFF. If I could ask Ms. Scafidi, would that driving shoe 

be copyright-protected, that little run of strip up the back? 

Ms. SCAFIDI. I think what we have here is a clear example of the 

idea-expression dichotomy, which all of copyright has to deal with. 

Ideas are never protected; very specific expressions are. I am not 

an expert in driving shoes, but I think that would be the nature 

of the inquiry. 

Mr. SPRIGMAN. I think it is clearly protectable subject matter 

under this bill. It is a design. A design is for the sole. And if you 

get all these driving shoes that are different, but they are using 

that design and adding new creativity to it, the point of that is the 

industry is establishing a trend in driving shoes. 

It is driving the consumption by men of footwear. Now, many are 

generally insensitive to footwear and this is how the industry gets 

them to pay attention, by innovating something. That process is 

going to be interfered with under the substantial similarity standard in this bill. That is what I worry about. 

Mr. SCHIFF. Okay. Thank you, Mr. Chairman. 

Mr. SMITH. The gentleman’s time has expired. Thank you for 

yielding back. 

That concludes our hearing. I want to thank our witnesses for a 

very, very interesting hearing and for lots of good information for 

us to consider. 

We stand adjourned on the hearing, and I would ask Members 

to stay right where they are, if they would. We are going to stand 

193

adjourned for about 3 minutes, and then reconvene in order to 

mark up a piece of legislation. 

Thank you all again. 

[Whereupon, at 10:45 a.m., the Subcommittee was adjourned.] 

(195)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE HOWARD L. BERMAN, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF CALIFORNIA, AND RANKING MEMBER, SUB- COMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY

Mr. Chairman, 

Thank you for scheduling this hearing on H.R. 5055 which would extend copyright 

protection to fashion designs. I am open minded about this issue and see the Copyright Office, in their written testimony, has raised the core question for discussion 

today: is there a need for this legislation and what evidence is available for quantifying the nature and extent of the harm suffered by fashion designers due to the 

lack of legal protection for their designs. The global fashion industry is said to have revenues of $784 Billion. According to the NPD Group, total U.S. apparel sales reached $181 Billion in 2005. California 

alone produces over $13 billion in apparel products and employs 204,000 direct employees and 59,000 indirect workers. Reportedly, apparel and footwear losses due to 

counterfeiting have been estimated to be $12 Billion annually. 

The fashion designers are seeking this protection in order to prevent the rampant 

piracy of their fashion designs, as well as to maintain the incentive for designers 

to continue to develop new original fashion designs. This protection would last only 

three years allowing original designers sufficient time to recoup the expenses incurred in designing and developing their fashion works. 

Current copyright law only provides protection to those design elements of a useful article that are separable and independent of the utilitarian function of the article. Therefore, fashion works have traditionally been denied copyright protection on 

the ground that they are considered to be ‘‘useful articles.’’

Fashion designers do have access to some other Intellectual Property rights both 

in trademark and patent law. However, trademark law protects the elements of a 

design that indicate the source of the product but does not provide general protection for designs. In patent law, there is the potential for design patents, but this 

route of protection often is not practical for designers because of the length of time 

it takes before the patent issues combined with the typical life span of a fashion 

design which is only a single season, maybe 3 to 6 months. Further, design patents 

require a level of novelty and originality that has generally been held to be higher 

that which is achieved by fashion works. 

The fashion industry is unique, in that it epitomizes the ultimate paradox of Intellectual Property protection. The arguments I have heard illustrate both sides of the 

debate. Is a high level of protection necessary to promote innovation, or does the 

lack of a high level of protection for fashion designs actually spur increased creativity in the fashion industry? Furthermore, in part as a result of the great speed 

with which fashion trends come and go, new fashions are available in the high end 

designer stores and in the low end retail outlets, making these fashions available 

to virtually all individuals regardless of their income level. Will an increased level 

of protection for designers, be at the detriment of the retailers and the public? 

In the past, Congress has demonstrated flexibility in expanding the Copyright 

laws, for example providing design protection for buildings (through the Architectural Works Copyright Protection Act (AWCPA)), and providing protection specifically for semiconductor ‘‘mask works’’ and boat hulls. 

Should we be extending copyright protection to fashion designs and are there 

other areas which we should also consider extending protection to such as, for example, the furniture and auto part industries. 

I look forward to understanding the extent of the problem of fashion design knockoffs, and what the impact is on the high end market, for example is there fear of 

lost sales in the couture market as a result of production in retail stores? In addiVerDate 0ct 09 2002 13:56 Oct 17, 2006 Jkt 000000 PO 00000 Frm 00199 Fmt 6601 Sfmt 6621 G:\WORK\COURTS\072706\28908.000 HJUD1 PsN: 28908
196

tion I would like for the witnesses to describe what constitutes a design that is ‘‘substantially similar.’’ Is it an exact copy? Is it a mere inspiration of a current trend? 

And how does one determine if it is something in between? 

I yield back the balance of my time. 

PREPARED STATEMENT OF THE HONORABLE MAXINE WATERS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA

Chairman Smith, Ranking Member Berman, thank you for holding this legislative 

hearing, and I appreciate the time and testimony of our witnesses. I commend the 

gentlemen from Virginia [Mr. Goodlatte] and from Massachusetts [Mr. Delahunt] for 

their leadership in introducting the legislation before this Subcommittee, H.R. 5055, 

which would amend Title 17 of the United States Code to provide protection for 

fashion design. 

The Ranking Member would undoubtedly attest that our respective shares of Los 

Angeles, California are home to numerous stakeholders in the fashion design industry. As such, it is important that this Subcommittee consider legislation to address 

the issue of piracy as it relates to their primary means of income and thus, their 

livelihood. 

My Congressional District is contiguous with the LA Fashion District—a 90-block 

section of downtown Los Angeles where the apparel industry comprises 80% of the 

Fashion District, and is responsible for over $7 billion in annual wholesale revenues 

that support the City treasury. Over 1.5 million people travel to Los Angeles from 

around the world to patronize the fashion apparel portion of the Fashion District. 

The LA Fashion District is truly a part of the new global economy. Legislation that 

would reduce design piracy is of extreme importance to the primary, secondary, and 

tertiary beneficiaries of the revenues generated from this industry. Allowing piracy 

to persist will cause this industry to diminish at a quick pace—given the ease with 

which designs can be copied, reproduced, and implemented using the internet and 

other digital communications technology. The LA Fashion District must be rewarded 

for the ingenuity of its designers, rather than made obsolete by the mercenary tactics of those who violate law designed to protect creativity and intellectual property. 

From a legislative perspective, extending Title 17 protection to fashion designs 

marks a modernization of the United States Code. As the testimony presented by 

the United States Copyright Office states, design protection legislation for industrial 

products has passed the House since the 71st Congress—back in 1930. A student 

of history knows that fashion design has undergone breakthrough changes over the 

past seven decades and continues to develop. If we want innovation to continue at 

its current pace, we must allow designers to protect their work. The three-year registration term for fashion designs—as compared to the ten-year period established 

for vessel hulls, is small and represents a reasonable concession. 

I support the legislation that we now consider and urge my Colleagues to support 

H.R. 5055, lest we lose another industry to global competitors. I yield back the balance of my time.

197

PREPARED STATEMENT OF THE UNITED STATES COPYRIGHT OFFICE, WASHINGTON, DC


USCO0001.eps
198


USCO0002.eps
199


USCO0003.eps
200


USCO0004.eps
201


USCO0005.eps
202


USCO0006.eps
203


USCO0007.eps
204


USCO0008.eps
205


USCO0009.eps
206


USCO0010.eps
207


USCO0011.eps
208


USCO0012.eps
209


USCO0013.eps
210


USCO0014.eps
211


USCO0015.eps
212


USCO0016.eps
213


USCO0017.eps
214


USCO0018.eps
215


USCO0019.eps
216


USCO0020.eps
217


USCO0021.eps
218


USCO0022.eps
219


USCO0023.eps
220

1 ‘‘A ‘‘useful article’’ is defined in 17 U.S.C. Section 101 as ‘‘an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.’’

PREPARED STATEMENT OF THE AMERICAN FREE TRADE ASSOCIATION, MIAMI, FL 

BACKGROUND

This statement is offered on behalf of the American Free Trade Association 

(AFTA). AFTA is a not-for-profit trade association of independent American importers, distributors, retailers and wholesalers, dedicated to preservation of the wholesale and discount marketplace to assure competitive pricing and distribution of genuine and legitimate products for the benefit of all American consumers. 

AFTA has been an active advocate of consumer interests for nearly twenty years. 

It has appeared as amicus curiae in the two leading Supreme court cases affirming 

the legality of parallel market trade under the federal trademark, customs and copyright acts (the 1985 Kmart case and the 1998 Quality King case) and in numerous 

lower court decisions. 

SUMMARY POSITION

AFTA strongly opposes HR 5055. H.R. 5055 is not legislation intended to rightfully prosecute pirates stealing logos and trademarks, which activities this Committee is already aware AFTA aggressively combats and rejects. On the contrary, 

H.R. 5055 is about expanding our U.S. Copyright laws to federally protect what our 

laws have insisted for 40 years should not be protected at all. H.R. 5055 intends 

to protect vague concepts of the ‘‘overall appearance’’ of a product, without requisite 

proof of distinctiveness, uniqueness or its impact on the American marketplace. 

AFTA has consistently, for more than 20 years, advocated on behalf of American 

businesses and American consumers to ensure that protectionist intellectual property laws are not used to deprive consumers and the American marketplace of legitimate products. Manufacturers and intellectual property rights owners must not be 

empowered—by this Congress or otherwise—to dictate what is sold beyond the rational limits of intellectual property rights and protections. 

GENERAL DISCUSSION

Section 102(b) of the Copyright Act states ‘‘in no case does copyright protection 

for an original work of authorship extend to any idea, procedure, process, system, 

method of operation, concept, principle or discovery, regardless of the form in which 

it is described, explained, illustrated or embodied in such work.’’ Relying upon this 

standard, garment designs have sometimes been deprived copyright protection because they have been said to be ‘‘useful articles,1’’ impossible to separate the utilitarian aspects from aesthetic parts. In Jane Galiano and Gianna Inc., v. Harrah’s 

Operating Company, Inc.; Harrah’s Entertainment, Inc (5th Cir 2005), the Court explained the standard as follows: ‘‘There is little doubt that clothing possesses utilitarian and aesthetic value. It is common ground . . . among the courts that have 

examined this issue [that the 1976 Copyright Act’s provisions were] intended to distinguish creative works that enjoy protection from the elements of industrial design 

that do not.’’ See Pivot Point Int’l, Inc. v. Charlene Prods., Inc., 372 F.3d 913, 920–

21 (7th Cir. 2004) (en banc). ‘‘The hard questions involve the methodology for severing creative elements from industrial design features.’’

Recognizing, then, that the Copyright Act offers no federal protection for garments 

not employing some degree of aesthetic value, separable from other utilitarian aspects of the design, designers have lobbied Congress to draft H.R. 5055 to, instead, 

provide federal protection simply for the ‘‘overall appearance’’ of each and every design, without definition, limitation for ordinary features or even examination for 

prior art. This is the exact broadening of existing intellectual property laws in the 

same type of blatant, undisguised claim of entitlement against which AFTA has advocated time and again. 

If H.R. 5055 protects fashion designs why would any other industry’s designs still 

be considered useful embodiments of ideas or discoveries which the Copyright Act 

is not intended to protect? Why would designers of food packages not believe that 

the overall appearance of their cartons deserve federal protection? Or designers of 

shampoo bottles or hair spray cans? What is the difference between the overall appearance of articles of fashion and the overall appearance of lipstick cases or soft 

drink bottles? 

In 2001, the Supreme Court clearly stated that the danger of anticompetitive 

overprotection is especially high in the case of product design. The Court in WalMart v. Samara Bros., said ‘‘It seems to us that design, like color, is not inherently 

221

distinctive . . . Consumers should not be deprived of the benefits of competition 

with regard to utilitarian and aesthetic purposes that product design ordinarily 

serves by a rule of law that facilitates plausible threats of suit against new entrants.’’ Although that case involved a determination of protectibility under the 

Trademark Act, the Court’s opinion about the role of federal law in protecting product designs is clear and indisputable. This Congress, via H.R. 5055, seeks to contradict that opinion—with the bill’s sponsors insisting only that protection of clothing designs is long overdue. This is insufficient evidence to support passage of a law 

that impacts many product designs and the ability of American consumers to obtain 

economical alternatives of products inspired by designers’ creations otherwise out of 

their economic reach and otherwise not available to them. 

Thus, the problem with H.R. 5055 is that it tips the balance of intellectual property protection overwhelmingly in favor of fashion and other product designers. A 

fashion design copyright will be relatively easy to obtain because no official with the 

Copyright Office conducts an examination of prior art to ensure the application’s 

originality. In addition, the copyright would be relatively easy to prosecute. The designer would merely need to show that the copyrighted design is ‘‘substantially similar’’ to the allegedly infringing design. And, because there is no criteria of what constitutes either protectable ‘‘appearance’’ or what will be considered ‘‘substantially 

similar’’ to that appearance, the one promise that will be realized is the promise of 

protracted and expensive litigation. Very little in the world of fashion design is truly 

original. Fashion designers frequently draw inspiration from one another and inspired designs often bear a similarity to the so-called ‘‘original.’’ For this reason, 

cases brought pursuant to a fashion design copyright would be very difficult to defend and mass marketers would very likely be discouraged from taking the legal 

risk of offering inspired fashions. Thus, the real losers will be the American consumers, who will be cheated out of access to the latest fashions at prices they can 

afford. 

Consumers care about the impact of HR 5055. The Internet is swarming with people—your constituents—critical of the efforts of this Congress to act as ‘‘fashion police.’’ Two examples should suffice to show the sentiments being expressed in this 

wide-spread electronic forum. ‘‘Capital Eye’’ distributed by FYI News Service at 

www.fyi-net includes an article ‘‘Copyrighting Fashion Not Only Impossible, But 

Silly’’ written by Randi Bjornstad and posted the week of April 9, 2006. ‘‘Now, let’s 

be serious,’’ she says, ‘‘when was the last time someone designed a dress—or coat, 

or shoe, or a pair of boxer shorts, for heaven’s sake—that was so unusual that anyone would say, ‘‘Wow, I’ve never seen anything like that before. . . . The fact is, 

in the world of art, everything’s derived from everything else, recycled, given a new 

name and embraced as something new and different and really out there.’’ At 

www.reason..com.hitandrun/2006/03/be—serious—dahl.shtml, Julian Sanchez 

writes: ‘‘Is this necessary? The idea behind intellectual property is supposed to be 

to provide creators with an incentive to innovate. Are we supposed to believe that 

Sears is digging into Armani’s profits to the point where they’re putting out fewer 

items each year? Are we supposed to believe that this effect is so pronounced that 

the loss in novelty outweighs the benefit to consumers of inexpensive, attractive 

clothing?’’

AFTA, whose members include major distributors to retailers, are forthright in 

their analysis and objections to this or any other bill which would eliminate the creation, distribution and sale of competitively priced genuine goods in the US marketplace. The obvious result of H.R. 5055 would be to diminish the right of American 

consumers to a freely competitive marketplace while providing heretofore unprecedented and uncontrollable dominance of distribution and pricing to a small cadre 

of designers. There is no method to defend against a claim that one has copied the 

‘‘overall appearance’’ of any product design—because there are no standards or criteria in the bill that distinguish distinctive design elements from those that are 

merely common place or ordinary. And while originally consumers were promised 

that Section 13 of the Copyright Act was passed only to protect boat hull designs—

about which, frankly, not many people could even feign much interest. Now this 

Congress wants the Copyright Act to also protect the overall appearance of articles 

of fashion. Tomorrow, then, it could be argued that Congress will have little reason 

not to permit copyrighting of the ‘‘overall appearance’’ of cosmetic bottles, earring 

holders or cereal boxes. 

AFTA understands that the American fashion industry may feel slighted because 

protection of fashion design in Europe is greater than currently offered under American intellectual property laws. AFTA knows that the European Union offers a type 

of community design protection which would certainly cause the envy of our domesVerDate 0ct 09 2002 13:56 Oct 17, 2006 Jkt 000000 PO 00000 Frm 00225 Fmt 6601 Sfmt 6621 G:\WORK\COURTS\072706\28908.000 HJUD1 PsN: 28908
222

2 A registered Community design right may provide protection for the appearance of a product 

or part of a product. The appearance can result from the shape, lines, contours, ornamentation, 

colours, texture or materials of the product. In this context, a product means any industrial or 

handicraft item except a computer program, and includes parts intended to be assembled into 

a complex product, packaging, ‘‘get-up’’, graphic symbols or typefaces (see http://

www.hindlelowther.com/design2.htm). 

tic designers looking to protect ordinary features of their products.2 But, our Congress should never merely mimic the laws of Europe. Our Congress should strike 

a balance between rights of the American consumer, American industry and American ingenuity, and if it does so, we believe it will reject the EU model and reaffirm 

our existing law which provides the needed incentives for original design based upon 

fair use of past creativity. 

There is no reason to believe that our countries’ top fashion designers are suffering economically because others draw inspiration from their designs. Nevertheless, H.R. 5055 seeks not only to ensure continued and increased prosperity for such 

designers, but also, to deprive American consumers of the less-expensive, alternative 

fashions inspired by it. 

H.R. 5055 damages rather than protects the American consumer; it does not provide protection for creativity, but stifles future creativity by extending the control 

of a few designers. AFTA urges this respected Committee not to cede to the interests of the fashion designers to the detriment of all that was intended to be protected by strong intellectual property protection in this country. Do not deviate from 

the need to protect our country against counterfeiters and thieves. Do not distort 

the importance of your mission to protect against misappropriation of distinctive 

creations and original works of art. H.R. 5055 is legislation guaranteed to generate 

out of control litigation and a bill that would impede our society’s ability to rely 

upon prior art to create new and better inventions. 

There is a necessary balance between inventions that need to be rewarded in 

order to generate greater inspiration and mere product designs deserving no such 

protection against future amendment or reproduction. The Copyright Act already 

recognizes such a distinction by refusing protection for useful designs—even those 

qualifying as articles of fashion under H.R. 5055. AFTA, its members and its supporters sincerely hope that the respected members of this Committee carefully consider the needs of the American consumer against the needs of fashion and other 

product designers. 

Subcommittee members are invited to contact AFTA’s General Counsel, Gilbert 

Lee Sandler, Esq., should they wish to discuss any matter raised in this statement 

in more detail or in the event there are any remaining questions or doubts regarding the intent or detrimental impact of H.R. 5055 on the American consumer or the 

competitive, domestic marketplace. 

We thank you for providing us with this opportunity to have our testimony made 

a part of the record of today’s hearing.

Æ