By Michel E. BohnNew protections for fashion designs may be on the horizon, as the Judiciary Committee has approved a modified version of the Innovative Design Protection and Piracy Prevention Act (the IDPPPA) for consideration by the Senate. The IDPPPA would amend § 1301 et sec. of the copyright statute (Title 17) to include provisions expressly protecting fashion designs. Presently, Title 17 is limited to protecting the design of a vessel hull, which is defined as the frame or body of a vessel, including the deck.
| December 6, 2010
The IDPPPA is being advocated as necessary to address the problem of piracy in the fashion design world. Several well-known fashion designers, the Council of Fashion Designers of America, and the American Apparel and Footwear Association have thrown their weight behind the IDPPPA, with the Council of Fashion Designers hosting a website called www.stopfashionpiracy.com to promote and track its progress.
Some notable protections that the IDPPPA would afford include:
- protecting the appearance as a whole of an article of apparel, including its ornamentation;
- requiring that the fashion design be (i) the result of a designer’s own creative endeavor; and (ii) provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles;
- expressly protecting qualifying men’s, women’s, or children’s clothing, including undergarments, outerwear, gloves, footwear, and headgear; handbags, purses, wallets, duffel bags, suitcases, tote bags, and belts; and eyeglass frames;
- establishing an infringement standard by defining the term “substantially identical” as meaning an article of apparel 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;
- providing a three year statutory bar for public disclosure and a three year protection term;
- providing a “home sewing exception” that allows a person to produce a single copy for personal use or for use of an immediate family member;
- not requiring registration of fashion designs, but instead providing protection once the fashion design is first made public; and
- requiring a claimant who brings an action for infringement to plead certain facts with particularity.
However, protection appears to extend only to the actual fashion design articles, and not advertisements or illustrations of those articles.
Passage of the IDPPPA would represent a significant change in the U.S. for the protection of fashion designs. We will keep a close eye on the progress of this proposed legislation.