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February 2011

Copyright Protection for Couture?

Proposed legislation known as the Innovative Design Protection and Piracy Prevention Act ("IDPPPA"), S.3728, seeks to amend the Copyright Act of 1976 by extending copyright protection to fashion design.  Backed by the Council of Fashion Designers of America, whose ranks include Diane von Furstenberg, Vera Wang, and Marc Jacobs, the IDPPPA provides limited 3-year copyright protection to fashion designs containing original elements or original arrangement or placement of elements that "provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar articles" of apparel and accessories.  Proposed protected "articles" include "men's, women's, or children's clothing, including undergarments, outerwear, gloves, footwear, headgear" and "handbags, purses, wallets, duffel bags, suitcases, tote bags, belts[,] and eyeglass frames."


The IDPPPA attempts to supplement the legal protection of fashion designs, which the current intellectual property law framework is often ill-suited to safeguard against unauthorized copying.  Under current copyright law, clothing design is generally not protected by copyright based on the prevailing view that clothing is a useful article.  Thus, clothing designs are protected only to the extent that their design elements are conceptually or physically separable from the utilitarian function of protecting the wearer's body from the elements.  Even so, as articulated by the Second Circuit in Whimsicality, Inc. v. Rubie's Costume Co., 891 F.2d 452, 455 (2d Cir. 1989), proving separability is a difficult task because "the very decorative elements that stand out . . . [are] intrinsic to the . . . function of the clothing." 


Furthermore, the seasonal schedule and short cycle of fashion often render fashion design protection under patent, trademark, and trade dress law unavailing.  For example, designers participating in New York's Fashion Week preview their Fall collections in February and their Spring collections in September.  Once the collection hits the stores months later, the collection's fashion relevance generally lasts only for the duration of the season, which in turn lasts only a few months.  In contrast, obtaining a design patent and acquiring secondary meaning for a trademark likely takes years.  Fashion's short cycle and demand for new and innovative designs are also the reasons why fashion designs are not ready indicators of origin as required for trade dress protection.  Indeed, powerhouse couturiers who have assembled an intellectual property portfolio over several years may have adequate protection of their designs under current law, if those designs include protected marks, such as symbols, logos, words, and patterns.  However, up-and-coming clothing designers or designers who use plain textiles bearing no protected marks have little recourse to the same protection under current law. 


If passed, the IDPPPA will bring the United States closer in line with the intellectual property laws of fashion design-producing countries such as France, the United Kingdom, and Italy.  The IDPPPA does not require registration of the designs, which are protected as soon as they are made public.  Additionally, to prevent abuse, the IDPPPA requires a heightened pleading standard and the allegedly infringing article be "substantially identical" to the original.  The IDPPPA provides for an independent creation defense and an exception for a replica that is home-sewn for personal use. 


Detractors of the IDPPPA believe that the legislation will destroy the affordability of fashion, cause job loss, clog the federal docket, and close down small businesses that cannot afford to defend against IDPPPA claims.  Even up-and-coming clothing designers, whom the legislation aims to protect, may not be able to afford litigation as a means of intellectual property protection. 


The IDPPPA is pending in the Senate, and an update will be provided upon the final disposition of the bill. 

Intellectual Property

Hazel Mae B. Pangan

Intellectual Property