The Senate Judiciary Committee has approved S. 3523. The companion bill in the House, HR 2511, which was the subject of our prior post concerning the Innovative Design Protection and Piracy Prevention Act, is pending and has been referred to the Subcommittee on Intellectual Property, Competition and the Internet.
Entries in HR 2511 (3)
As we previously posted, the Subcommittee on Intellectual Property, Competition and the Internet held a Hearing on H.R. 2511 on July 15, 2011, concerning the Innovative Design Protection and Privacy Prevention Act.
The Hearing started just after 10:00 AM, and the following witnesses provided brief testimonies:
Lazaro Hernandez, Designer and Co-Founder, Proenza Schouler
Mr. Hernandez provided a passionate but scripted testimony and argued the U.S. has become a haven for copyists and piracy. He argued younger designers and smaller operations are the most vulnerable in the marketplace.
Jeannie Suk, Professor of Law, Harvard Law School
Ms. Suk provided a comparative analysis between copyright law principles and reasons for fashion design protection. She also described the differences between "knock-off" designs and "inspired-by" designs. Ms. Suk argued the bill is narrowly tailored to those making "knock-off" designs, and the term is limited and does not harm the consumers. She also argued "luxury firms" are not as adversely affected by copyists as much as smaller/lower-market firms.
Christopher Sprigman, Professor of Law, University of Virginia School of Law
Mr. Sprigman provided a brief history of Congress considering, but not acting on, fashion design protection in the past. He notes the fashion industry has succeeded over the past decades even though fashion design protection has been relatively limited.
Mr. Sprigman provided slides showing statistical information that only high-end original women's dresses have experienced price growth since 1998. He concluded by arguing he doesn't believe the bill is necessary since the fashion design market is highly competitive and may lead to rampant litigation.
Kurt Courtney, Manager, Government Relations, American Apparel & Footwear Association
Mr. Courtney argued the bill is very limited in scope and cited several sections of the bill to support his argument, including the sections relating to infringement and pleading requirements, which he argued created a burden on plaintiffs which would stem frivolous lawsuits. His position countered that of Mr. Sprigman.
At about 10:39 AM, members began questioning the witnesses.
Mr. Sprigman was asked if technology has affected the speed of copying designs. Mr. Sprigman stated the increased access to the internet has not affected the speed of copying.
Mr. Sprigman was also asked what "mischief" could happen if the bill is passed. Mr. Sprigman provided slides comparing two bags and several wedding dresses, and stated plaintiff's lawyers would be looking for settlement money.
Mr. Sprigman appears to be the popular witness, and was further asked if there was a chance of "trolls" appearing in the market. Mr. Sprigman responded by stating he could see law firms starting business as "copyright trolls."
Ms. Suk was given a chance to counter some of Mr. Sprigman's comments and arguments. Ms. Suk argued the data Mr. Sprigman provided was not being interpreted correctly, and stated the increase in "high-end" women's dresses does not necessarily mean "healthy competition."
Mr. Hernandez was then asked on his view of creating jobs, and remarked how the copying of designs makes his designers push the envelope.
Mr. Hernandez was presented with a statement that copying churns fashion design development. Mr. Hernandez responded by emphasizing the differences between "copying stitch by stitch" and "inspired-by" designs.
Mr. Courtney provided comments the bill contains a high threshold of originality for protected fashion designs.
Ms. Suk was then requested to provide a written set of jury instructions with respect to "inspired-by" designs and "knock-off" designs. This question was provided by Congressman Watt (D-NC). Congressman Watt stated his biggest concern was the difficulty in properly instructing a jury to decide whether an allegedly infringing article is an "inspired-by" or "knock-off" design.
The Subcommittee on Intellectual Property, Competition and the Internet has scheduled a Hearing on H.R. 2511, the "Innovative Design Protection and Piracy Prevention Act," [IDPPPA] for Friday 7/15/2011 at 10:00 A.M.
We previously posted on the IDPPPA and we will post a follow-up on Friday with details of the Hearing.
We now have a copy of HR 2511, published July 13, 2011. This bill proposes an amendment to 17 USC 1301 et seq.
Of note, the bill adds the following language to 17 USC 1301:
"Fashion Design.-A fashion design is subject to protection under this chapter."
A fashion design, as defined in the bill, is the appearance as a whole of an article of apparel, including its ornamentation, and includes original elements or the original arrangement of elements as incorporated into the overall appearance of the article that:
"are 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."
The term 'apparel' is given a broad meaning, and 'substantially identical' is defined as an article "which is so similar in appearance as to be likely to be mistaken for the protected design, and contains only those differences in construction or design which are merely trivial."
It should be noted, however, that the "presence or absence of a particular color or colors or of a pictorial or graphic work imprinted on fabric shall not be considered in determining the protection of a fashion design ... or in determining infringement...."
A protected fashion design continues for 3 years beginning on the date of commencement of protection under Section 1304, which states the date is the date the design was first made public. 'Registration' will not apply to fashion designs.
An "infringing article" is defined as any article which has been copied from a protected design, or from an image thereof, without consent. An article is not considered "copied" when it is not substantially identical in overall visual appearance to the original elements of the protected design or when it is the result of independent creation.
Also, it is not considered infringement to make, have made, import, sell, offer for sale, advertise, or distribute an article which was created without knowledge a design was protected and the article was copied from such design. Accordingly, unknowing retailers appear to be protected from liability, and there does not appear to be any liability for end-consumers.