Thursday, December 2, 2010

Update: Fashion Design Protection

As discussed here a while back, Congress has been mulling over the idea of amending Section 1301 of the copyright statute - which currently only protects vessel hull and deck designs - to include fashion designs.

Well, things are starting to look up for the fashion industry. Yesterday, Senate Bill S.3728 (also known as the Innovative Design Protection and Piracy Prevention Act), which was introduced by Sen. Schumer of New York on August 5, was passed by the Senate Judiciary Committee. The bill, with minor modifications, now moves on for consideration by the full Senate.

Here are some highlights:

  • Protects appearance as a whole of an article of apparel, including its ornamentation

  • Covers clothing, undergarmets, outerwear, handbags, suitcases, belts and eyeglass frames, among others

  • Must be original and unique

  • Employs a "substantially identical" infringement standard, similar to trademark

  • 3-year term of protection (10 years for vessel hulls)

  • 3 year public disclosure bar (no registration required)

  • Home Sewing Exception: a person may make a single copy of a protected design for home use only

  • As with all things copyright, there is an independent creation defense (using a totality of the circumstances analysis)

  • Does not protect illustrations or pictures of the design, such as in advertising (or, dare I say, virtual design representations)

I know many people have been pushing for this (and some not so much), so let's hope for the best balanced outcome.