Is the Innovative Design Protection Act An Answer to the Next Bangladesh Textile Factory Tragedy?
Posted: Nov 07 2013
5.16.13 In the shadow of the continuously evolving Bangladesh factory tragedy, I attended an event last week at GGrippo Art + Design in Williamsburg, Brooklyn that got me thinking. The event featured a conversation between distinguished sustainable fashion leaders including the Ethical Fashion Academy, author-academic Sass Brown, Centre for Social Innovation’s Carmen Artigas, Helpsy’s Rachel Kibbe, and designers Organic by John Patrick, Titania Inglis, Francisca Pineda, Kameleonik, and Ecoology, as well as Ecouterre managing editor Jasmin Malik Chua in a discussion about “Slow Fashion”.
A Bit About Slow and Fast Fashion:
Slow fashion is a response to the relatively recent advent of “Fast Fashion”, based on quick design and manufacture of trends from Fashion Week each fall and spring. It is based on the belief that consumers in the Fast Fashion market thrive on constant change and frequent availability of new products. But is it the chicken, or the egg? These endless trends are monsters that need to be fed, and they do so through marketing. Fast Fashion brands constantly tell consumers there is a new must-have trend every few weeks. The quick, cheap manufacturing allows consumers to buy more often at a lower price, thus generating more revenue for the industry overall, mostly for the big brands.
This philosophy of “Quick Response” manufacturing is the kind that allows the likes of Zara, Mango, Benetton, H&M, and Topshop to brag about new fashions arriving every few weeks. Not coincidentally, it is the same kind being blamed for the Bangladesh building collapse. The building’s owners and managers have all cited pressure by these very brands- as evidenced by purchase orders found in the rubble- to get orders filled on time, lest money be lost or late orders to be rejected if even one day late. Depending on each contract, a large brand could reject an entire order if it’s late, and the factory could lose a huge sum.
This is just how fast we are talking:
The Slow Fashion movement seeks to provide an alternative to this mess by explicitly not creating short-term seasonal trends, and bragging instead about how long and how lovingly a particular product took to bring to life. Its precepts encourage consumers to pursue such contrarian goals as choosing artisan products, supporting small businesses, fair trade and locally-made clothes; choosing clothing made with sustainable, ethically-made or recycled fabrics; choosing “classic” styles and quality garments that will last longer, transcend trends, and to repair instead of buying anew; creating DIY products by making, mending, customizing, altering, and up-cycling your own clothing; buying secondhand or vintage clothing and donating unwanted garments; and lastly, by fundamentally slowing the rate of fashion consumption by just buying fewer clothes, less often.
Fashion Speed, Trends, IDPA, & Bangladesh:
I recently started connecting the dots between Fast Fashion, Slow Fashion, trends, recurring Asian textile factory tragedies, and the Innovative Design Protection Act of 2012 (a.k.a. the “Fashion Bill” or “IDPA”). As a lawyer, I recently researched and lectured on the IDPA for a group of budding fashion designers at Parsons. And as an entrepreneur in the sustainable fashion scene, I enjoy attending events like Slow Fashion to hear the opinion of leaders in our corner of the fashion industry. So it’s about time I started putting two and two together.
My first response to the most recent tragedy was to boycott the brands using the particular factory because they implicitly condoned the structural problems. My thought was, these brands keep professing ignorance to being associated with illegally constructed factories, and it’s time to hold them responsible for their duty of due diligence.
But sadly, I didn’t see even one protester outside Zara or Mango in Soho, the heart of New York’s most upscale, fashionable district. Then, an article published in Ecouterre by Ilana Winterstein from Labor Behind the Label, which has campaigned for years in favor of garment workers rights, gave me further pause. She implores “Boycotting Brands Linked to Bangaldesh Building Collapse is Not the Answer” because it would kill the meager, albeit exploitive livelihoods that have empowered Bangladeshi women, thanks, well, to the very advent of Fast Fashion. Winterstein argues that as consumers, we must ask relevant questions of the companies whose clothes we wear, sign petitions, write to brand CEOs, and lobby for progress. She says pressuring brands to sign up to the Bangladesh Fire and Building Safety Agreement can make a real difference to the lives of workers. She cites one recent settlement where 2,800 Indonesian workers from the PT Kizone factory who won a landmark settlement against Adidas.
These are all good ideas, and indeed I might add we should be asking for transparency, such as for the brands to list on their website the names of factories they use, and their safety records. But there are literally thousands of factories in Bangladesh alone used by the world’s biggest Fast Fashion brands. And the brands won’t spend money or take action out of the kindness of their hearts. These tactics have little chance of success unless literally millions of people lambast the brands on social media resulting in terrible PR that jeopardizes sales, a la Nike back in the 90s when Americans first realized that in fact our soccer balls and t-shirts were being sewn by Pakistani youth in sweatshops.
I’d like to suggest a different route could be found in changing the parameters of the game in which Fast Fashion operates. It’s getting more difficult to hold U.S. companies responsible for atrocities overseas, so we might like to try some good old fashioned domestic legislation. The Innovative Design Protection Act was intended to give copyright protection to designs created by brands for 3 years, and would give a cause of action to those brands- big or small- whose designs were illegally copied for profit. The IDPA would hit directly at the kind of copying that fuels the trends Fast Fashion is based upon by increasing the price and risk of copying. I would posit that enacting the IDPA could achieve some of Slow Fashion’s ideals by decelerating Fast Fashion in a moderate, though meaningful enough way to lessen textile factories’ mentality of production-at all-costs. To prevent factory managers from insisting they cannot skip just one day of production in the face of obvious dangers.
Critics of the legislation say that among other things, it would chill creativity, destroy trends, decrease industry revenue, and increase legal costs. They say that although the IDPA gives greater rights to small brands who are ripped off by big brands, enforcement is impractical, the legal system is broken, and it favors big brands with deep pockets. They argue it would increase small brands’ legal costs both in the creation phase and in policing their copyrights.
Incidentally, the same is true of any intellectual property, whether trademarks, patents, or copyrights. A common legal maxim is that filing for such protection merely means you’re willing to spend the money to sue. And yet if you don’t sue to police your brand, you could lose the protection altogether along with the investment in the brand. All of this entails legal costs that would certainly be passed on in the way of higher consumer prices.
There were other problems with the most recent version of the IDPA, which ultimately combined to tank the legislation. That being said, an actionable law is better than no law itself when it comes to protecting a brand’s own designs as its unique creations. Moreover, passing the IDPA would put a dent in the kind of Fast Fashion trends that incentivize dangerously constructed textile factories to stay open despite obvious cracks in the foundation. Although not every brand may have the money to enforce its copyrights, a decent law in place plus some high-profile cases in favor of the copyright holders could deter big brands and push back Fast Fashion from the brink. I doubt we would even notice a trend slowdown, and this, I think, would be worth the cost of a $3.00 t-shirt perhaps becoming $4.00. Especially if everyone else is doing it.
[This post is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship among any individuals or entities. Any views expressed in this post or at the linked web pages are those of the relevant writer(s) on a particular date, and should not necessarily be attributed to this writer, her law firm, its agents, or its clients. Neither MARLANDIA nor any person or entity associated with it can or will warrant the thoroughness or accuracy of the content here or at the cited sources.]