The 2010 Fashion Bill: Inching Towards Protection

On December 1, 2010, the Senate Judiciary Committee agreed to send the bill titled the Innovative Design Protection and Piracy Prevention Act (S. 3728) (the “IDPPPA”) to the full Senate for a vote. The bill was originally introduced by Sen. Charles E. Schumer (D-N.Y.) on August 5, 2010. The decision to send the IDPPPA for a full Senate vote not only suggests a forthcoming change in U.S. Copyright law bringing it closer to protection already provided in the European Union and Japan, but also marks a significant advancement for the long-overlooked proponents of intellectual property protection for fashion design.

Under the current law, fashion designs do not receive explicit intellectual property protection. The effort to remedy this has been marked by several failed attempts, including legislation introduced in the House last year under the title of the Design Piracy Prohibition Act of 2009 (H.R. 2196).

The success of the IDPPPA, however, appears promising. The current presentation of the IDPPPA would append “fashion designs” to Chapter 13 of the Copyright Act, which currently addresses protection for vessel hull designs. Thus, not joining its brethren of protected works under 17 U.S.C. § 102, fashion design would occupy a unique niche under the Copyright Act.

“Fashion design,” as defined under the proposed legislation, includes articles of men’s, women’s, and children’s clothing, handbags, purses, wallets, tote bags, belts, and eyeglass frames. Patterns and colors, however, are not protected elements. Unlike other works protected by Copyright law, fashion design protection would arise upon the first public display of the work and last for three years. This legislation, however, would not cover designs made public before its enactment.

Borrowing from trademark law, the IDPPPA sets a high standard for a designer to meet in enforcing its rights. Under the IDPPPA, an owner of a protected work must show that the allegedly infringing article is “substantially identical” in appearance to the protected design that it is “likely to be mistaken for the protected design, and contains only those differences in construction or design which are merely trivial.”  In addition to this high threshold, an owner of a protected work must show that the defendant “saw or otherwise had knowledge of the protected design.” 

Several defenses and exceptions are built into the IDPPPA. Among these include the “home sewing exception,” protecting individuals who produce a single copy of protected design for personal or immediate family use. The IDPPPA also excludes from infringement illustrations or pictures of a protected design in advertisements, books, periodicals, newspapers, motion pictures, or other similar mediums. As drafted, the IDPPPA does not provide for secondary liability, thus excluding retailers and customers who inadvertently sell infringing designs from liability. Independent creation is also a defense to infringement under the IDPPPA.

The full Senate vote on this groundbreaking legislation is anticipated to occur before the December recess.