Copyright Protection for Fashion Designs Revisited (Again)

fashion We’ve been following developments in copyright law related to the fashion industry for quite some time.¬† You may recall that clothing falls into the category of a functional item, which is not protectable under United States copyright law.¬† Yet, because fashion designs are frequently “knocked-off,” the fashion industry has long sought copyright protection for designs. We originally wrote about proposed copyright legislation affecting fashion designs in 2009, which might finally give copyright protection to fashion designs.¬† That legislation went nowhere.¬† Earlier this year, we wrote again about whether Congress would pass revised legislation under the name of the “Innovative Design Protection and Piracy Act” (H.R. 2511) proposed in July 2011.¬† Those in the know gave that bill only a nine percent chance of passing; it did not.

Just a few weeks ago, on September 10, 2012, Senator Charles E. Schumer of New York introduced Senate Bill S.3523, referred to as the “Innovative Design Protection Act of 2012.”¬† The Senate bill, which largely tracks the predecessor legislation, affords 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.¬† This time, legislators addressed fears by Congress that the act would engender an era of increased fashion-related copyright litigation.¬† New to this version includes provisions that require designers to give infringers 21 days notice before filing suit.¬† Under the proposed law, damages would not begin accruing until suit is filed. This is a problem.¬† The popularity of designs is at best ephemeral and by the time a designer files suit, the infringer may have soaked the market during the initial 21 days, assuming, of course, that the infringer is identified immediately after the infringed design is made public.¬† If not, unrecoverable damages may accrue for an even longer period of time.

Some commentators view this limitation as better than nothing and that the fashion industry would be pleased to obtain diluted protection rather than no protection at all.  Only time will tell whether this legislation will meet the same fate as its predecessors, a likely scenario given a lame duck Congress.

–Adam G. Garson, Esq.

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