By Marc Albert Robinson
| July 15, 2011
As we previously posted, the Subcommittee on Intellectual Property, Competition and the Internet held a Hearing on H.R. 2511 on July 15, 2011, concerning the Innovative Design Protection and Privacy Prevention Act.

The Hearing started just after 10:00 AM, and the following witnesses provided brief testimonies:

Lazaro Hernandez, Designer and Co-Founder, Proenza Schouler

Mr. Hernandez provided a passionate but scripted testimony and argued the U.S. has become a haven for copyists and piracy.  He argued younger designers and smaller operations are the most vulnerable in the marketplace.

Jeannie Suk, Professor of Law, Harvard Law School

Ms. Suk provided a comparative analysis between copyright law principles and reasons for fashion design protection.  She also described the differences between "knock-off" designs and "inspired-by" designs.  Ms. Suk argued the bill is narrowly tailored to those making "knock-off" designs, and the term is limited and does not harm the consumers.  She also argued "luxury firms" are not as adversely affected by copyists as much as smaller/lower-market firms.

Christopher Sprigman, Professor of Law, University of Virginia School of Law

Mr. Sprigman provided a brief history of Congress considering, but not acting on, fashion design protection in the past.  He notes the fashion industry has succeeded over the past decades even though fashion design protection has been relatively limited. 

Mr. Sprigman provided slides showing statistical information that only high-end original women's dresses have experienced price growth since 1998.  He concluded by arguing he doesn't believe the bill is necessary since the fashion design market is highly competitive and may lead to rampant litigation.

Kurt Courtney, Manager, Government Relations, American Apparel & Footwear Association

Mr. Courtney argued the bill is very limited in scope and cited several sections of the bill to support his argument, including the sections relating to infringement and pleading requirements, which he argued created a burden on plaintiffs which would stem frivolous lawsuits.  His position countered that of Mr. Sprigman.

At about 10:39 AM, members began questioning the witnesses.

Mr. Sprigman was asked if technology has affected the speed of copying designs.  Mr. Sprigman stated the increased access to the internet has not affected the speed of copying.

Mr. Sprigman was also asked what "mischief" could happen if the bill is passed.  Mr. Sprigman provided slides comparing two bags and several wedding dresses, and stated plaintiff's lawyers would be looking for settlement money.

Mr. Sprigman appears to be the popular witness, and was further asked if there was a chance of "trolls" appearing in the market.  Mr. Sprigman responded by stating he could see law firms starting business as "copyright trolls."

Ms. Suk was given a chance to counter some of Mr. Sprigman's comments and arguments.  Ms. Suk argued the data Mr. Sprigman provided was not being interpreted correctly, and stated the increase in "high-end" women's dresses does not necessarily mean "healthy competition."

Mr. Hernandez was then asked on his view of creating jobs, and remarked how the copying of designs makes his designers push the envelope.

Mr. Hernandez was presented with a statement that copying churns fashion design development.  Mr. Hernandez responded by emphasizing the differences between "copying stitch by stitch" and "inspired-by" designs.

Mr. Courtney provided comments the bill contains a high threshold of originality for protected fashion designs.

Ms. Suk was then requested to provide a written set of jury instructions with respect to "inspired-by" designs and "knock-off" designs.  This question was provided by Congressman Watt (D-NC).  Congressman Watt stated his biggest concern was the difficulty in properly instructing a jury to decide whether an allegedly infringing article is an "inspired-by" or "knock-off" design.

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