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Thursday, January 20, 2011

Copyright Protection for Fashion Design: A Legal Analysis of Legislative Proposals

Brian T. Yeh
Legislative Attorney

Fashion design does not currently receive explicit protection under U.S. copyright law. Limited avenues for protection of certain types of apparel designs can be found through trademark and patent law, though proponents of copyright protection for fashion design argue that these limited means are insufficient. The 111th Congress did not pass legislation that would have provided a three-year term of copyright protection for fashion designs, the Design Piracy Prohibition Act (H.R. 2196) and the Innovative Design Protection and Piracy Prevention Act (S. 3728). This report analyzes these two legislative proposals. The 112th Congress may consider similar legislation regarding fashion design protection.

The bills resembled each other although contained differences. For example, for a fashion design to receive protection under H.R. 2196, the designer must register the design with the U.S. Copyright Office; S. 3728 contained no such registration requirement. Instead, protection arises under S. 3728 upon the design’s creation, although the design must be a sufficiently “unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.” This is a more restrictive definition of “fashion design” compared to H.R. 2196.

Both bills offered copyright protection for the appearance of an article of apparel as well as its ornamentation. They broadly defined the term “apparel” to mean the following: clothing (including undergarments, outerwear, gloves, footwear, and headgear), handbags, purses, wallets, tote bags, belts, and eyeglass frames. H.R. 2196 would have denied protection to fashion design that had been embodied in a useful article that was made public by the designer in the United States or a foreign country more than six months before the date of the application for registration. In contrast, S. 3728 would have denied protection if the design was made public prior to the enactment of the bill or more than three years before the date upon which protection of the design is asserted. H.R. 2196 would have required the Register of Copyrights to establish and maintain an electronically searchable database of protected fashion designs; such database must be made available to the public without a fee or other access charge. S. 3728 contained no similar provision.

Both bills would have prohibited the creation, importation, sale, or distribution of any article whose design has been copied from a protected fashion design (or from an image of it), without the consent of the registered design owner. Such activity would have been considered an infringement of the fashion design owner’s rights, and the adjudged infringer would have been subject to damages of the greater of: $250,000 or $5 per copy (under H.R. 2196) or $50,000 or $1 per copy (under S. 3728). H.R. 2196 provided several limitations on infringement liability: (1) if the allegedly infringing article is original and not closely and substantially similar in overall visual appearance to the protected design; (2) if the allegedly infringing article reflects a “trend” (defined by the bill as a newly popular concept or idea expressed in a wide variety of designs of apparel that are in immediate demand); or (3) if the allegedly infringing article is the result of independent creation. S. 3728’s limitations on liability were slightly different: (1) if the allegedly infringing article is not “substantially identical” in overall visual appearance to the original elements of a protected design (that is, the article would not likely be mistaken for the protected design because the article contains non-trivial differences in construction or design); (2) if the article is the result of independent creation; or (3) if a person produces a single copy of a protected design for non-commercial personal use. In addition, both bills expressly stated that an infringing article is not an illustration or picture of a protected design in an advertisement, book, periodical, newspaper, photograph, broadcast, motion picture, or similar medium.

Date of Report: January 4, 2011
Number of Pages: 13
Order Number: RS22685
Price: $29.95

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