Friday, April 26, 2013

Sexism in IP law


On April 26, 2013, I attended an event called the "Fashion Law Institute."  This even was timed to coincide with world IP day, and was co-sponsored by NYIPLA and AIPLA at Fordham Law School.  I don't normally do fashion law, but I went, because it sounded interesting.

Speakers included attorneys, a law professor, and fashion designers, and was situated in a delightful atrium, with a free bar and finger food.  If you did not want CLE credit, you did not have to pay anything.  Such a deal!

I had somehow thought that the copyright law had been reformed so that fashion designs could now be copyrighted.  I was mistaken.  They still can't be.  

There was a heart wrenching story there of an independent fashion designer who designed what was clearly an innovative and never before seen collar on a dress, posted it on Facebook, and had it ripped off by big name labels immediately.

Another speaker, an attorney, spoke of being able to protect copyright in photos of dresses & therefore sue those producing knock-offs based on their photos of their products -- when the dresses themselves were not protectable.

Another speaker had gotten a utility patent on a novel structure for a girdle and had gotten a multi-million dollar settlement against an infringer.

On the whole, though, the feeling was a bit dismal that designers could not protect their original designs.  Design patents would take too long, given that a design was probably only useful for a single season.

Moreover, designers were depressed that they would graduate from top notch schools and find that their new employers were not interested in their designs, but only in knocking off the designs of others.

As I was listening to this, I remembered my days back at Kenyon and Kenyon, doing litigation support for the great cookie litigation.   This was a litigation between Proctor and Gamble as patentee, and Nabisco, Keebler and Frito-Lay as defendants.   It concerned a patent on cookies.

It was hornbook law that recipes for the preparation of food could not be patented.  The patentees there got around that, by using a smoke screen of elaborate machines to measure texture of the cookies and elaborate calculations on measurements taken by the machines, so that the Examiner reading the patent did not suspect that it was actually a recipe.  It looked so very high tech.

So sitting there, looking at all these clothing designers, who were primarily women -- and thinking of those who create recipes, most of whom are likely also women -- I had an abrupt realization that there is something fundamentally sexist about the intellectual property law of this country.  Creative people in traditionally female fields are denied protection for their inventions.  

This seems to be a way of disenfranchising women and denying us access to the benefits of Intellectual Property --- another way that men rig the system to keep women in poverty: barefoot, pregnant behind the plough.

Interestingly, we were informed that other countries do not have the same law as we do.  Fashion designs are protectable in many other countries, such as the European Union and China.  

Here we are running about telling the world that IP is *so* important.  Yet, in this area, which nevertheless represents a substantial industry, we are the rogues, allowing designs to be stolen freely.

Why?

This seems like supreme hypocrisy on our part.

And, as I said before, profoundly sexist.

We learned that there is copyright legislation being considered that would allow fashion designs to be the subject of copyright in the USA.

I hope the readers, if there are any such, will contact their Congress Critters -- as my ex husband used to call them -- in support of such legislation.

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