A recent question posed to us by a law student in Rotterdam, Netherlands (yes, you read correctly) about the status of copyright protection for fashion designs in the United States motivated us to revisit a previous article we wrote in 2009 about proposed copyright legislation referred to then as the Design Piracy Prohibition Act (H.R. 2196). That bill was introduced in April 2009 by William (Bill) Delahunt, U.S. Representative, Massachusetts 10th District.
You may recall that clothing falls into the category of a functional item, which is not protectable under United States copyright law. This is distinguishable from fabric designs, which may receive copyright protection. We noted in our article that limited protection for fashion designs may be afforded by trademark (trade dress) and patent (design patents) law; however, these have not been practical alternatives for the fashion industry.
H.R. 2196 died in committee and, just like other attempts at creating copyright protection for fashion designs, never became law. In July 2011, Congress made yet another attempt to protect fashion designs, this time in the name of the “Innovative Design Protection and Piracy Act” (H.R. 2511), introduced by Rep. Robert Goodlatte of Virginia. That bill has been referred to committee and is given only a nine percent chance of being passed. Goodlatte’s bill, similar to H.R. 2196, provides copyright protection for “apparel” defined as men’s, women’s, or children’s clothing, including undergarments, outerwear, gloves, footwear, and headgear, handbags, purses, wallets, tote bags, belts, and eyeglass frames. The definition of “fashion design” also remains the same:
‘A fashion design’ (A) is the appearance as a whole of an article of apparel, including its ornamentation; and (B) includes original elements of the article of apparel or the original arrangement or placement of original or non-original elements as incorporated in the overall appearance of the article of apparel.
In a nod to existing copyright law, which only protects the non-utilitarian, non-functional aspects of a work, the drafters of the new bill added that a protected article of apparel must be the “result of a designer’s own creative endeavor and provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.” Here, the legislation opens the door for fashion design while keeping it closed for protecting functional aspects of a design. One wonders how difficult in practice it will be to make the separation.
H.R. 2511 makes another interesting change to the definition of “fashion design” by also defining “substantially identical” as an “article of apparel which is so similar in appearance as to be likely to be mistaken for the protected design.” No doubt big fashion — desiring to eliminate knock-offs — was an influence here. On the other hand, the bill tries to mollify critics of the previous legislation by adding a so-called “Home Sewing Exception” that permits individuals to produce a single copy of a protected design for personal, non-commercial use.
Finally, the new legislation limits copyright protection for fashion designs for only three years after making it public and if you want to seek protection for a design under the act, you must sue infringers within the same time period. In the earlier bill, the law demanded owners to register their copyrights within six months of making the designs public while not imposing special limits on the copyright term. Perhaps the drafters of the new legislation hope that a more limited protection would enhance the chance of the bill’s passage. We will keep you informed.
— Adam G. Garson, Esq.