fashion copyright lawOur office frequently receives calls from young entrepreneurs asking us to copyright their latest fashion design.  Sadly, we tell them that copyright does not offer the protection they seek and, in fact, they will have to enter the market place with the expectation that their designs, if good enough, will inspire “knock off” copies.

This state of affairs may change, however, should the Design Piracy Prohibition Act (H.R. 2196) become law.  The bill, which was introduced in April by William (Bill) Delahunt, U.S. Representative, Massachusetts’s 10th District, offers copyright protection to fashion designs broadly defined as clothing, handbags, duffel bags, tote bags, and eyeglass frames.

The proposed legislation amends Chapter 13 of the Copyright Act, which offers design protection to a single category of useful articles, the design of boat hulls. Under current law, fashion designs are deemed “useful articles,” defined by the Copyright Act as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.”  17 U.S.C. § 101.

Designs of useful articles can be protected under current copyright law “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.”   Limited protection may be afforded by trademark (trade dress) and patent (design patents) law; however, these have not been practical alternatives for the fashion industry.

The proposed law provides only a three-year term of protection for fashion designs because fashion trends are typically short-lived.  Other features of the bill provide that applications be filed with the U.S. Copyright Office, which would be required to maintain a publicly accessible, computerized database of protected fashion designs, including images.  The bill makes protection unavailable for fashion designs that have been made public by the designer more than six months before the application for registration.  It also narrows the definition of “innocent infringement” to impose liability for those who had a reasonable grounds to believe that design protection was claimed; and increases damages for infringement.

Keep in mind that Congress’ previous attempts at providing copyright protection for fashion designs have been largely unsuccessful.  We’ll keep you informed of the progress of this bill.

— Adam G. Garson, Esq.