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I'm Philip Martin sitting in for Kelly and this is the Kelly Crossley Show in the last decade the number of nursing homes in the United States has been decreasing. And it's a trend that's hitting us hard here at home. According to the Centers for Disease Control in the last 10 years Massachusetts has lost 20 percent of its nursing homes. And the losses aren't stopping. This is not an encouraging development when you factor in the number Baystate boomers who will be entering the nursing home pipeline in the years to come. If you add a stressed out economy to the mix what options do nursing homes have when it comes to providing quality care. We'll take a look at today's nursing care system and fast forward to what our resources will be as our blue state continues to grow. We'll top off the hour with a Harvard Law School professor who's advocating for copyright protection for the fashion world. Up next nursing home care and knockoff couture. First the news. From NPR News in Washington encore of a coalmine the Senate has passed the so-called jobs bill and heads now to President Obama's desk. New York Democratic Senator Charles Schumer says this issue is

what Americans want lawmakers to take on. Congress is focusing on what they've asked us to focus on. Congress is focusing on what the American people want us to focus on which is jobs jobs jobs. 11 Republicans joined Democrats to pass the bill and President Obama thanked them today saying it shows how lawmakers can work across party lines. House Democrats have picked up one more vote in their drive to pass a health care overhaul bill. Ohio Democrat Dennis Q Senate who had opposed an earlier version of the bill now says this time he'll vote in favor of the legislation. NPR's David Welna has more. Because Senate whose district includes Cleveland had continued to oppose the health care legislation as recently as a few days ago. He's one of several House Democrats who objected to it on the grounds it did not go far enough. But after flying to his district on Air Force One with President Obama on Monday because Senate's announced today that he's changed his mind. This is a defining moment. And so even though I don't like the bill I've made a

decision to support it in the hopes that we can move towards a more comprehensive approach. Because Senate as decision moves House Democrats a step closer to their goal of passing the health care overhaul in what promises to be a very close vote. David Welna NPR News the Capitol. The Labor Department says inflation seems to be under control. NPR's Chris Arnold reports the so-called producer price index dropped by six tenths of a percent. Prices declined because of a big drop in the cost of gasoline prices for food and energy products always jump around a lot. So when you factor those out overall prices held very steady in February. We're not seeing any signs of inflation Brian Bethune is an economist with IHS Global Insight. Prices are pretty flat. Automotive for appliances especially electronics prices computers ssion TVs prices. Comparable TVs continue to go down.

So really it's good out there in terms of actually crying and it says it's good because it also means that the Federal Reserve can keep interest rates very low to make borrowing money cheaper for many Americans and that helps to boost the economy. Chris Arnold NPR News. The world oil cartel says it wants to keep oil output where it is now. Twelve member countries of OPEC's pump about a third of the world's rather world's crude oil. Right now they're supposed to produce less than 25 million barrels of oil daily but individual countries often pump more than they're supposed to. OPEC's officials say they want to maintain the price of oil currently about eighty two dollars per barrel. On Wall Street the Dow Jones Industrials are up forty nine points at ten thousand seven hundred thirty five The Nasdaq is up 14 a 23 92. This is NPR. The U.N. special investigator on human rights in Myanmar formerly known as Burma is accusing that government of terrible systemic abuse. Some of these accusations could rise to accusations of crimes against humanity. As Lisa Slyne reports from

Geneva the investigator has forwarded his report to the UN. UN investigator Thomas O'Hara can tell says he doesn't believe the upcoming elections and me and Maher will be free and fair. He notes the government has an acted a new law that strips the right of political prisoners to take part in the elections. There is no indication the prisoners of conscience we released under the Freedom of expression assembly and association will be granted. If my assessment is that under these current conditions. Elections cannot be great people can tell no reports hold some 20 100 prisoners of conscience. He accuses the government of gross violations of human rights including the recruitment of child soldiers. He's calling for an international commission of inquiry to look into these crimes. For NPR News I'm Lisa in Geneva. President Obama is welcoming Irish Prime Minister Brian Cowen and his wife to the White House today. He and first lady Michelle Obama will hold a St. Patrick's Day

reception for the couple this evening. Detroit's mayor wants to close 45 city schools. Mayor Robert Bobb says the Detroit school system will lose about 30000 students during the next five years. The mayor wants to renovate other schools and consolidate some more. Detroit closed 35 school buildings just a few years ago. I'm CORBA Coleman NPR News from Washington. Support for NPR comes from the William T Grant Foundation supporting research to improve the lives of young people. Lynette W. Grant Foundation dot org. Good afternoon. I'm Philip Martin sitting in for Kelly and this is the Kelly Crossley Show. The year was 1970. President Reagan sent Congress the first ever trillion dollar budget proposal. Democrats regain control of the Senate and the Giants won the Super Bowl. 1987 was also the year that strict federal rules

regulating nursing homes were put in place following reports of widespread neglect and maltreatment of our oldest citizens. Yet more than 20 years later here in Massachusetts nearly 40 percent of 437 nursing homes have recently received below average scores due to what the Boston Herald describes as and I quote a troubling catalogue of lapses in abuses that are putting vulnerable seniors at serious risk. The Herald cited 71 complaints of neglect and physical sexual and verbal abuse of residence at 40 nursing homes among other findings. But representatives of the nursing home industry are seeing red and take issue with key aspects of the report. However one sees it the quality and conditions of nursing homes here in Massachusetts are once again in the public put in the public eye. Now we're joined by the lead reporter in The Boston Herald investigation Jessica Farhan. That's far Jen rather. Also with us is Arlene Germain president of the

Massachusetts advocates for nursing home reform. And Scott plumb He's vice president had mass Senior Care Association which represents 500 nursing and rehabilitation facilities and other care residents as nationwide or statewide I should say. Welcome to all of you. We're going to start Of course with you Jessica it was your report that got this ball rolling. And I'd like to know how long have you been reporting on the nursing home industry first of all. Well I was the Herald health and medical reporter for a couple years and the nursing homes are necessarily my be but we did spend a lot of time months and months researching this and requesting documents and that sort of thing. So let's get there. Let's get to the nitty gritty What's what's the what's the key finding. I've summarized some of it. What's the larger scope. Well we did point out that according to state inspections about 40 percent of the state's nursing homes scored below average. And we you know

looked at inspections for some of the joints some of the poorest performing nursing homes in the state. In addition we talked to local state and national nursing home you know experts who I guess advocates for nursing home residents who also said that they you know thought there was a lot of work that still needed to be done to make nursing homes safer for residents. And I understand Scott that when I'd like to get into the substance of that more but I understand that you have you took issue with the with Report. Well we took issue with both its tone and its conclusions I think by any objective measure. That we're aware of Massachusetts there's a home to perform extraordinarily well particularly when compared to nursing homes and other states consumer satisfaction scores are high quality indicators scores are high. You know to say that 40 percent of the nursing homes failed to make the grade when the article didn't point out that the grade was 92 percent I think was an unfair characterization of the entire

industry. Certainly we can do better. We have homes that have problems but the characterized half of the nursing homes as somehow below par when you're comparing them to each other and by statistical definition half of them have to be below average. We thought was unfair or just I should give you a chance to to respond. Well you know I have talked about that with this with Scott and other people and you know that's his belief and we stand by you know what we reported in our story and we think it you know our story did you know was accurate and did you know take a fair look at nursing homes and you know we specifically looked at some of the poorest performing nursing homes which we you know highlight in the story that is. That's you know but we took a look at that was a part of the reporting with some of the poorest performing nursing homes in Scott makes a good point there are you know national measures you can look at that say that Massachusetts isn't as bad as some other states for sure.

Well Jermaine you represent a nursing home. You're in fact a self-described and institutional message advocate for nursing home reform correct. That's how you describe yourself. Correct. And help in some ways you fit right down the middle. What was your view what your view of the of the report. Exactly. My organization is an all volunteer organization. And and the folks that are on the board have had loved ones in nursing homes including myself and. There is actually very good points on either side but what we have seen and as board members and of our members is that the nursing homes despite all the efforts of many dedicated workers despite all the regulations despite oversight there are still not places where we would want our loved ones or ourselves to have long term care. So our efforts are moving towards a new movement in the industry that's called

Culture Change movement. And that's where I'd like to bring some of the focus of today's discussion as to a solution to some of the problems that are in the nursing home industry. Let's let's get a little elaboration What problems are. Jessica Perhaps I just got the Boston Herald perhaps you can describe what what is what exactly is a failing nursing home what does it look like. Well in the poor performing nursing homes that we looked at we looked at their state survey inspections are inspected about once a year. And you know the inspectors go in they find different violations and some of the you know for lack of a better word failing or poor performing nursing homes some of the stuff the inspectors found included almost across the board in the ones that we looked at. Failure to follow up care plans that were developed to prevent seniors from falling down as Arlene probably knows you know falling down once or twice can have disastrous effects for someone who's 92 years old and frail and sick.

Other violations that were found were just unsanitary conditions you know. Ceiling tiles were falling off vomit not being cleaned up in bathrooms and that sort of thing. They also pointed out a few nursing homes medication error rates that were higher than the you know what should really be going on. Some nursing homes had really inadequate and unsafe smoking policies that were going on you know other times there was you know expired medications being kept around those types of things would lead investigators to give. For the state to give a nursing home a low school our feeling score well let's let's turn to our listeners for just a second are you in a nursing home or do you have a loved one there. How is their quality of care and how can it be improved and what about the thousands of you those hardworking people who work in the nursing care industry. What's been your experience. We're at 8 7 7 3 0 1 8 9 7 0 8 7 7 3 0 1

8 9 7 0. And so Scott the conditions that Jessica was just describing I mean I know it's your job basically to to represent the industry but I would like to call it the profession the profession. But by all objective measures Ken can you see that. Are there any of these conditions that in fact need addressing that have been described by by Jessica in her report. I mean clearly. This stuff was not made up. I mean clearly there there is a problem somewhere. Yeah and we're not saying that there aren't relatively isolated incidents as the nursing homes that Jessica previewed for their quality of care issues we're aware of are working with these homes we do a lot of training around quality care we are embracing culture change and working with a lot of the advocacy groups. But I think the message I want to convey is twofold number one the vast majority of nursing homes in the state do a very

good job with very limited resources and again if you look at what our consumers what our residents what their family members think about us there's a survey coming out over this weekend the consumer satisfaction survey that's done by D ph independent of nursing homes it's going to conclude that 9 and part of the public health right experiment public health I'm sorry is going to conclude for the third consecutive time that nine in 10 of our resident family members would recommend that nursing home to another loved one or family member so that is not a statement of an industry that has a massive consistent quality of care crisis we have individual nursing homes that have issues. They are driven by many different things not the least of which is probably an adequate staffing. But I think on the whole we're very proud of what our members do we're very proud of the 50000 hardworking people in our nursing OB's and I think unfair characteristics that brush the whole industry with the problems of a few make it much more difficult. Because the report seems to suggest that it's systemic and you're saying that it's episodic.

You're saying it's episodic That's correct and we're are going to remain at the Masters as advocates for nursing home reform. Is it systemic or is it episodic. I think it is a systemic change that's needed in the industries not only Massachusetts nursing homes. Let me change I mean is there is is that are the problem systemic. And obviously the changes need to be widespread but are the problem systemic. Yes they are and I'd actually like to address the consumer satisfaction survey that's coming at us from the advocates point of view where a bit skeptical of the outcome of the of the results for a few reasons we believe that the average person. It needs to have their expectations raised about what really good quality care is so we believe that they might be raiding nursing homes on on a lower expectation. We think that some folks who come to visit a nursing home might come there for

an an hour or a week to see somebody they may not see all the problems. So what Scott says is correct there are some very good nursing homes. And what I initially said is that folks that are working in the field are very dedicated to trying to do their best but this is a stomach problem as on how nursing homes are set up they were based on the hospital model going back 40 odd years. And of course focusing on medical care which is something that's very much needed but you don't live in a hospital. Can you live in a nursing home. And there has to be a real switch in Focus on how care is given in a nursing home. In that case I guess the question then becomes I guess are several questions one is about the the. I ficus e of nursing homes period is an outmoded motto. Perhaps some other way of other types of residences might be more pertinent in the 21st century.

But of course that won't do won't do any good for people who are already nursing homes and so the question becomes what are the what are the alternatives what can be done to improve existing modes of care and to also create additional modes of care that will accommodate our older residents and we'll talk about that in a second. I'm Philip Martin sitting in for Kelly Crossley and we're discussing the quality of care in the state's nursing homes and other facilities for older citizens and residents. Is there a nursing home that you feel comfortable putting your loved ones in. What are some of the concerns you have when it comes to finding a nursing home for a family member. We're at 8 7 7 3 1 8 9 7 0. We'll be back after this break. Stay with us. With. It with. With. With.

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The new eighty nine point seven. WGBH. Good afternoon and we're back I'm Philip Martin and this is the Kelly Crossley Show we're talking about the quality of nursing home care in the Bay State. With me are Boston Herald reporter Jessica I have to get this right this time is far gone right. OK. And Scott plum vice president Ed Matt senior cure Association and Arlene Germain president of the Massachusetts advocates for nursing home reform. During the break we were talking about how we can move forward on this on this issue. And before we go to the to the to the phones let's try to answer that question. You've made the point that Massachusetts compared to other states is doing very well. Scott but obviously not well enough what. What steps can be taken to improve the quality of care in the nursing homes here. Well I think what we can do is look at and I think we'll have consensus on this probably what makes for a good nursing home.

I think first and foremost adequate resources. We're no different than any other care system a teacher is a better teacher she has 20 students in a class than 40. So first of all there has to be adequate resources which in this state budget crisis has been a real challenge. I think secondly those resources have to be used to hire train and retain a high quality staff. High quality staff is the key to good care in nursing homes. I think thirdly you need support of ownership and competent management and we're working very hard with training programs to do that and I think lastly and this is your area of expertise a strong commitment the culture change to a patient centered care to choice to get away from the medical model which as everybody does ABC and the at the same time to a model that's more decentralized it gives nursing assistants more responsibility and care planning. So I think all of those things are critical ingredients but without resources without adequate public resources because we're a public model none of that can be done. I think it'll be interesting. I recently learned that Washington D.C. enacted

some legislation this is the District of Columbia not the federal OK for the District of Columbia. The highest staffing ratio in the countries around 4.1 which is through the GA I have recommended that that would be the baseline for giving good care. So it will be interesting to see how they implement it. Because there's a cost to giving poor care. So in other words the cost obviously right up because patients are if you have poor care patients get sicker or I should say nursing home residents get sicker. Correct correct. And not and also the staff have injuries from working shirt short staff so to speak. So there is many areas of human suffering and financial loss from working with too little staff. So there will be a good test case to see how it works.

Well let's let's take some phone calls let's go to Matthew in Natick. Matthew. Oh that's OK. Oh yes please go ahead Matthew. Oh good afternoon. I'm right now up and coming health care administrator and the buy parent deal with long term care facilities the best use of my entire life for the least 15 years and I have to stay there studying the hospice model and end of life care. Really considering alternative approaches that accommodate a holistic approach to what it means to be human is really going to be the future of care. This entire country is moving towards a preventative model and it not only to the younger generation need it when they become old but our greatest generation integrated care their entire early person not patient and

get them out of the hospital and into a community spend big. The public should be aware of the resources shift starts. That's a good point. That's a good point let's you guys like to respond to that Scott perhaps. Yeah the state's policy and all States policy is what's known as community first. And that's a policy that basically says if people can be cared for safely and effectively at home that's where they should be cared for that's where they want to be. We strongly support that policy most of our members do home care as well. But there are always going to be people whose care needs are such 24 hours a day that they have to be cared for in a single place. And I think his point about the hospice model is well-taken. The model in nursing homes in this state is a semi-private rooms or semi-private we have some rooms that are three and four people to a room that's what our public payers support they don't support the private model. It's very difficult to do hospice care in a nursing home. When you close curtains rather than have people in

different rooms. So I think we all talk about staffing we all talk about training and all that but but the physical plant is almost as important in our physical plants and Massachusetts are really antiquated and we don't have in our view a support of state that's going to help us capitalize and provide provide better physical care so that's a big issue for us. Jessica at the Boston Herald. Your studies show they are your investigative reporter I should say show first of all there's been a decrease in the number of nursing homes in the in the state. Those that exist are they coming into. Would you say that they are. They've come into the 21st century or are we still dealing with 20th century nursing care. Type of policy. Yeah you know I don't know if if I'm the best person to to answer that question about historically you know 25 years ago how things were done. We were more focused on what was going on right now in nursing homes maybe Arlene or Scott would be better.

But are you finding Arlene let me turn to you are you finding that the that the caller Matthew for example talked about new modes of addressing senior care or older care. What might those months be in your view. Well there is a push to do community based living which is a wonderful thing. But as Scott said there will always be a need for nursing home. And this culture change approach which could be looked at similar to end of life care for quality of life reaches across all spectrums of care. So that puts the president or the long term care recipient first. It promotes the relationship between that person and the immediate care giver who is the certified nursing assistant. It produces what's called a consistent assignment so the relationship develops and that caregivers will see very quickly if there's any changes in the person's condition quickly so those.

So let's go to Cathy on line 3. She's in Plymouth cafe and why you fat and how are you doing. I am do you want to make a quote and then just recently I've taken my mother out of a nursing home due to questionable care. I think she's been she has become a lot more interactive. She's able to walk around the hall with a walker. She's able to go up and down to stairs and while she was in there and has gained two pounds and she's eating three meals a day completely. Well she was in the nursing home. She roamed up and down the hallways in a wheelchair. She got no physical therapy no occupational therapy she barely lost a toneless 13 pounds while she was there so I am very concerned about the quality of care and the communication among the caregivers within the facility and we have gone through

approximately four facility. Think Len that the last three years. Scott plum. I mean all I could says I'm sorry you had that experience and I hope she continues to flourish of home and that's probably the place you should have been all along rather than in a nursing home again. We're not miracle workers. We try to do the best we can with the resources we have. I think one way to look at nursing homes is the transformation that's gone on in nursing homes in this state in the past 20 years. Twenty years ago nine in 10 of our patients came from home and they stayed for five years. Today 9 and 10 of our patients come from the hospital and six in ten of them are home within three to four weeks. So we've seen a radical transformation a nursing home is kind of split and very short subacute stays we get people better we send them home where we do quality of care and I think most people think the quality of care in nursing homes the physical therapy services for that population a very good. But we're always going to have a longer

stay population. They tend to be advanced dementia hospice care. And that's the quality of life challenges we have that we hope the culture change can can help us with. So we're we're we're kind of schizo phrenic in that way in that the same nursing home can have two diametrically opposed units want to short stay a rehab unit and want a longer stay dementia unit and it's a challenge to have that kind of different client systems. Well let's go to let's go to Whitney in Gloucester. You're concerned there. Yes I am already and I have worked in nursing homes in Maine and Massachusetts for 20 years and there are still many points about this field that I want to bring up number one. My biggest thing is that when people come into these facilities a lot of them are this is it. This is the this is the last place they're going to be and it is truly their home. And I have been through countless D ph surveys and when we've been really short

staffed and it has been really tough on truly the people who are ultimately their family I there's never an outcome where they have addressed their spiritual needs their emotional needs right down to the nitty gritty part of what makes a patient feel happy and satisfied. It's not the pretty wallpaper. It's not the chandelier. It's it's it comes down to having enough people to have to give dignified care. And that doesn't necessarily just. Come out with good mouth care and that your staff look at all of those things count but ultimately if you pay these incredibly hardworking people this pitiful amount of money you're you're just simply that there's a whole cultural change that needs to happen but it's really looking at because. You're as good as the nurse's aide who was behind that closed door. Take care of your patients and they are incredibly overworked and I just

always get upset when I hear anybody sort of criticizing the nursing homes without looking at the big picture that there is. It is a there's never enough staff and that that's what it comes down to. And also addressing the important parts of patients lives. Well thank you Whitney. One of its one of the questions I guess we should raise is it seems concentric if you don't have enough money and I'm not saying the root of the problem is money but it is a question. But if you don't have enough money and right now we're strapped in Massachusetts as are other states and if you're paying people not enough money to go to work in nursing homes and other facilities how do you basically advance how do you improve how do you move forward. Isn't it concentric in fact aren't you going in circles if in fact you see people on a certain level and people are treated at that level in terms of their pay scale. Arlene Germain.

Ok I hate to sound like a broken record but culture change really is the answer. It's a change in attitudes in philosophy. It does not cost a lot of money you can you can invest in plant if you want to change to make private rooms and that is one of the models but is basically flipping the pyramid in a nursing home from the administration on top of residents and bottom flipping it over so residents are first. OK they're there. They live their lives according to their lifelong preferences so they'll get up in the morning when they want to go to bed when they want. Basically when they want and it's promoting the relationship again between the certified nursing assistant and the residents also that all nursing staff and all the different departments within the nursing home revolve around the resident so that what happens is from the certified nursing system point of view they have. I'm going to say job satisfaction. They're finally able to deliver the

care the kind of care that they would like to give they're given more respect they're brought into the care planning process for the residents and the residents themselves are living their lives. With more enjoyment and have a better health and mental well-being I think it's a good paradigm. But I think again the question becomes even with that. What about resources if you don't have enough resources. And you're suggesting Scott that there aren't enough resources. Though I can't see that that would be the entirety of the problem. Jessica for the the question here again about resources and about quality of care. Were there any conclusions that the Boston Herald investigation came to that sort of were that there was a synthesis there is a symbiotic relationship between. The resources that are available and the quality of care models that have that

might exist for example elsewhere around the country. Well I mean I can just speak to what we found in Massachusetts. You know I think you earlier asked. Arlene if you know the problems in nursing homes or episodic or more systemic a lot of the episodes that you know amount to violations in state inspection reports appear to be sort of indicative of systemic problems where a lot of times it seems staff weren't there just wasn't enough follow up for some of these people who were who you know come into a nursing home and they have a risk of falling. And yet they would fall multiple times over multiple months. Well clearly there is a disconnect. You know there's maybe not enough people watching that person or there's not enough trained well-trained people who you know know that you need to watch these people that you need to follow up on their care plans. And so we did you know it just seemed that that seemed to be one of the problems is that you know you would have an episode in

a nursing home you could see how it was really a systemic issue and I think a lot of it does come back to staffing the amount of staff and the amount of training that the staff gets you know when you're paying people I'm not sure even what a CNA makes but when you're not paying people a lot of money or there's high turnover you know that can really affect the kind of care that people get and that you know was definitely something that appeared evident to us. OK well we only have a few moments remaining. And so in that remaining time Scott or Wayne if you could sort of summarize how do we bring nursing home care into the 21st century. How do you do that Scott. Well I think first of all anybody who's studied this recognizes there's a relationship between quality and resources up to a certain point. You're could be you can be committed to culture change but if you're in a building with three and four bedrooms that's an adequately staffed I don't care how committed you are to cultural change it's not going to work. So resources are not the only thing but they are an absolutely crucial ingredient. I think what we have to do is try to maximize resources.

We're trying to do that now with Medicare because we recognize the state has a fiscal crisis. We're trying to shift payers to Medicare wherever possible. We're trying to embrace culture change and decentralized decision making and give to CNA more authority and responsibility and become less of a medical and more of a kind of a social model on the quality of life side. So I think if you look back 10 years in this state and I think both you would agree with the quality of care in nursing homes in past 10 years has improved dramatically. OK well clearly this is part of the larger debate the health care debate that we're having in this country this is just an aspect of it. Well thank you very much our guests Boston Herald reporter Jessica Farge and Arlene Germain president of the Massachusetts advocates for nursing home reform in Scott plum vice president at Mass Senior Care Association thank you all. When we come back a Harvard law professor is leading the fight to protect fashion designers from copycats.

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Because there are renewed calls for anti cyber bullying legislation has been making its way to the state house because you'll only hear the Emily Rooney show on the news. Eighty nine point seven. WGBH radio. We're back. I'm Philip Martin filling in for Kelly this is the Kelly Crossley Show Have you ever painted a one of a kind portrait written an original play or authored an article and found what you made remade by someone else and displayed in a museum or splashed as their own across the width of the Internet. Well Jenny souk has seen plenty and all the former fashion rip offs knock offs and copy cat appropriations and she's doing something about it. She's using the law to go after the culprits. Jenny souk is assistant professor of law at Harvard Law School. She also happens to be a Guggenheim fellow and a senior fellow at the Humanities Center at Harvard. Jenny welcome. Thank you. What you're doing is incredible. Well but why are you doing and I mean there are all types of intellectual

law issues out there why fashion copycats. Well the first thing too. Mention is that I I am first and foremost an academic and so what I'm trying to do is to explore the issue of copyright for fashion design through my academic work and to understand first of all try to understand why it is that fashion design is treated differently from other kinds of intellectual property where we recognize that creators are investing a lot of time and energy and to create these works of cultural innovation. And I think there's no doubt in the public mind that that fashion designers are in fact doing that that they're there that they're creating works that that add value that have a creative component that are expressive in much the same way that a painting say would be. Well it seems like a really difficult actual law issue because it is

special in an age of a quote unquote sampling in music for example. When someone like Jay-Z or him and them are sampling music and others are borrowing of from the internet to cobble together articles and oftentimes without attribution. A recent story of course out of Germany of a young German author who basically put together an entire book with references. Watch and I should say entire segments taken from another book. Sascha copycat seems a difficult thing to go after when a lot of the fashion is able to give across the board. I think that's a really interesting place to start especially with the issue of music and sampling the fact that many people think that it is very important for musicians to be able to borrow from and quote from prior prior works. That is that is something that that many people have said and yet it doesn't mean that we say well we should have no copyright that

protects musicians to notice that borrowing and copying imitating being inspired by all of those kinds of activities are central to the work of creativity in many different areas of creative production. That doesn't actually in itself constitute an argument against protecting the creative works in a certain genre. So for example in fashion you mention that many fashion designers do look to other designers for inspiration to past works and to current. Designers they all do look at each other and part of what makes fashion fashion is that one wants to be part of a trend that that that's an important aspect of what it means to be participating in a fashion experience that the idea is yes you want to stand out as an individual but also to be part of a trend. But that kind of observation about the true the importance of the trend the importance of being in step with other people. That doesn't in itself tell you that copyright protection doesn't belong in the fashion realm because

there's a difference between copying something. There are degrees of degrees of copying where there's a difference from copying something exactly or almost exactly almost identically versus being inspired by something where you might you might borrow or you might quote from or refer to something that that's out there but it's not. You have to make these distinctions and that's really what copula copyright law is all about. And that in itself seems like a mammoth task. For example an article in Slate magazine last year focused on concerns for designers like Jason Woo. Jason Wood chorus of folks you probably remember he's the now world famous because he designed first lady Michelle Obama's inauguration dress and apparently as soon as no sooner had the dress been worn by Michelle Obama than there were rip offs correct. Yes that's right. You're referring to the article in Slate that was coauthored by myself and Scott Hemphill at Columbia Law Review. My co-author in this fashion work

and that in that article I tried to get my co-author and I tried to explain that observing that that fashion is trend focused and that and copying is copying is what all designers do. It doesn't necessarily mean that what we we need to tolerate things like exact replicas of a dress like the inauguration gown. The thing is that often people think that this copyright. Law that might apply to fashion if it were to be created that it would hurt. Really the big name designers like Prada and Gucci but what with the Jason Wu example I think was meant to show is that not everybody had heard of Jason Wu. He is someone like that is a designer that smaller designer less well-known and in fact its those designers who are really just getting their start and maybe achieving some amount of notoriety but don't have a big fashion house behind them. Those are the designers who are hurt most by copies because those are the designers whose whose copies will actually

substitute for the original design. If you're buying a Gucci you're the kind of person who's buying a Gucci you might not. You might not be willing to substitute a cheap copy for Gucci but for Jason Wu who doesn't have the kind of identity and fame of a big fashion house you might just enjoy the design you might like the design you might admire it and then you might want to substitute a cheaper copy for the design. If you're just tuning in we're talking to Jenny souk She's assistant professor of law at Harvard Law School and we're talking about fashion copyright soar and copycats. One question I would have and it seems like you have an uphill battle in many ways but one question of course is are you working closely with the fashion industry too. To put a legal break to some of the rip offs that are taking place. Well the work that I do is academic work and most and for the most part it's it's in the spirit of exploration. But then there they must be interested in what you're doing.

The fact that the industry isn't interested and the industry has for years been interested in the issue and it's not the industry itself is not one. It's not of one mind about adding copyright for protection. For example many designers of course noticed that their designs were frequently knocked off and so therefore believe that they should have have protection. On the other hand retailers and manufacturers who might be the ones who would be liable if a copyright law were created. Right because there are copycats right. Those those parties are would be against adding copyright protection for fashion it really all depends on what you think is going to happen to you once this law if this law is ever put in place are you going to be the protected party because you're creating original works that are protected or are you going to be a copyist who's going to be liable and will therefore have to pay you know pay maybe for a license to try to to get permission to copy. Well the reason I say you're it seems like an uphill battle in many ways is not long

ago I was in Beijing and stopped by a mart where they were selling all types of fashion. Armani and Hugo Boss all types of fashion. And one thing that was apparent. The more you looked was that these were rip offs. These were not these were not real and then if you go into New York of course you go around Broadway or any number of places you'll see young men selling scarves and purses and all types of things. And some places even dresses that are quote unquote rip offs. How do you stop that type of thing. They obviously get it from me. Some type of manufacturer but it's already out there it's on the streets. Well part of what why it's on the streets is because it's not it's simply not illegal to copy to copy designs however it is an easy beagle to engage in what's called

trademark counterfeiting. So for example if you have a bag that has a logo of a famous fashion house like Gucci or Prada and you copy that that's today considered illegal. And those are those are trademark counterfeits. And the way that. The way that the fashion industry is structured is that because the because that the trademarks are protected and designs are not protected it pushes in the direction of creating goods that have the trademark. So the trademark becomes a way to ensure that your goods will have the protection of copyright law but trademark law sorry trademark law. We're going to let you play devil's advocate for a second if I'm if I'm out there listening and I see and I and I hear this argument and I see at the Oscars or see the Emmy Awards and I see people basically walking round in dresses or suits that are worth thousands upon thousands of dollars

that I would never be able to afford. And then there was an approximation of that dress or that coat that that's being sold for $200 rather than $4000. The question then becomes why should I care about the intellectual property of a fashion designer who is bringing in 4000 dollars per dress. Well I think a lot of people. Appreciate that even though they would like to have certain products for free. Like for example you would like to photocopy a book instead of paying for it. You would like to download music freely without having to pay for it. We do recognize that that the law says no you can't do that and it does that for a reason which is to protect the incentives of creators to create. And so the same applies in fashion you might not personally feel that it's a great thing for you if you can have an exact replica of a dress that cost thousands of dollars for only you know maybe a hundred dollars

and maybe that's not personally good for you but when you look at that incentive the incentive theory that lies behind copyright law it doesn't apply any less in the fashion realm. Now you're motivated by the legal imperative but are there moral underpinnings to what you're discussing. Would you would you talk about it beyond the legal. Could you talk about it beyond the legal realm. Well when one of the things that I think is very special about fashion but at the same time revealing about fashion is that it's a realm where people have the imperative to stand out or to express themselves. People often talk about self-expression not in terms of what books they're writing or what music they're creating or other kinds of act. Creative activities but they often talk about their own individual style as something that they express through their clothes. And so this is kind of a fundamental way that human beings have of relating to the world and of showing who they are.

And it may not be as important to to some people but for many many people this is an activity to engage in every single day which is the choice of what to put on their bodies. And so in that way I think it's a very telling example because it's an it's an area of creative activity that that happens all the time. And and in terms of the the global business of fashion it's more important in terms of the numbers the global output about just more important than books music and movies come behind. German monetary Yes monetary Ali and so. It's so in terms of the the everyday experience of people in their relationship to the world the experience of what clothes are putting on their bodies is is something that's fundamental to how they're choosing to represent themselves and one of the first things you notice about a person is how they're dressed and so it's an area of individuality on the other hand fashion is very much associated with being in step with other people being part of a

social phenomenon being on the trend and also just being kind of in conformity with something that's going on all around you so it has this weird paradoxical quality that on the other hand it's something that people used to express themselves as a as an individual. On the other hand so clearly that would not be fashion if there were not some social direction a common social direction that was shaping people's individual. And because people want to be in style that's just it I kid. I see what you're doing is extraordinary but I'm thinking about the politics of real life. In the sense that everyone wants to be in style they want to be fashionable. And if they have a chance to spend $200 rather than $4000 I can't. I'm wondering how how you basically push back against that type of that type of designer. Well I think that's a very very fair question. I I would reframe the question as well. What about because I'm focused mostly on

designers who are not charging $4000 but rather hundreds of dollars. Right and those are the new or emerging designers who are less established. And so if you're if you've got say an $800 dress that's selling for $100 or $400 dresses selling for $200 a copy then you're actually going to see some substitution going on where somebody is going to say I don't want to pay $4 I don't want to pay. I'd rather pay $200. And in that way it's similar to other areas of creative expression where we don't we don't allow somebody to just copy a movie and sell it for less than they would if they just went to the store and bought it legitimately. And so really good point good point. Where were these hard these rip offs taking place are people looking at Project Runway or are they are they looking on the Internet. Are they going into stores and simply copying down designs. How is this taking place. Well some of it is. Some of it does occur by people going into stores and. Just copying the designs taking photos.

Some of that happens before objects hit the stores. They will. They might happen at runway shows where people take photos with digital cameras and send them to manufacturers often manufacturers who are overseas and so it can happen in US in a split second before the design is even unveiled. It can happen in individual designers studios where people can be snooping around and spread and spread rumors of what what it is that a certain designer has in store it could happen even during the Runway season when runway shows are going on they don't all happen at the same time they happen over the course of weeks and in sometimes in different cities and that even that short span of time can be enough time for designers to adjust what they're doing in order to be imitative or to engage in copying and sometimes it's to engage in harmless just trend creation. We're about 30 seconds. What. So what's put in the steps today what do you

what do you do now in order to curtail. Well there have been three previous versions. A bill to protect fashion design introduced in Congress to house bills and one Senate bill. And currently we're waiting to see whether the Senate introduces a new bill and the main main issue is that you don't want to use the same kind of standard which is the substantial similarity standard which is that that's the ordinary standard for copyright and for example books and music and movies we don't. That's too broad. Right so we want something narrower. OK. Well thank you very much I'm afraid that's all the time we have we've been speaking with Jenny souk. She's assistant professor of law at Harvard Law School. I'm Philip Martin sitting in for Kelly. And first of all Jenny thank you very much. Thank you. Tomorrow we'll be exploring the jazz scene in Boston and you can keep on top of the Kelly Crossley Show by visiting our website WGBH dot org slash Kelley cross like this is the Kelly Crossley Show. Today's program was engineered by Jane pick and produced by Chelsea Mertz. Our production assistant is on a white knuckle but we are a production of WGBH radio

Boston NPR station for news and culture.