Bringing IP to the Runway: The Push for Fashion Copyrights

Sunday, October 28, 2012, by Holly Bannerman

On September 20, 2012, the Senate Judiciary Committee approved the Innovative Design Protection Act of 2012 (S. 3523) (“IDPA”).  IDPA would protect apparel such as undergarments, outerwear, gloves, footwear, headgear; handbags, purses, wallets, tote bags, and belts; and eyeglass frames. The protections afforded to fashion designs in the bill are markedly different than most copyright laws in a few ways.  First, the legislation would only provide three years of protection for designs that “(i) are 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.”  As a general rule, copyright protection lasts for the life of the author, plus an additional 70 years.  Second, a designers seeking protection under the IDPA would have to show that the designs are “substantially identical,” meaning an article of apparel that 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.”  Under traditional copyright law, only a showing that the works are “substantially similar” is required.   Finally, IDPA requires that an infringement of a fashion design shall not commence until 21-days after notice to the alleged infringer has been provided.  The notice shall contain specifics as to the alleged violation.  During that grace period, the alleged infringer is given the chance to cure the infringement.

The line between copying a dress and using an existing dress as the inspiration for your own unique design is fuzzy.

Those in favor of the bill believe that designers should receive the same legal protections as other creative artists (i.e., filmakers, authors, musicians).  Fordham law professor Susan Scafidi raises concerns about the impact technological advancements, such as the Internet, have on the industry.  She has argued in front of Congress that fashion designs can appear on a runway and be immediately uploaded to the Internet, and within days a similar product is available for sale before the designer even has a chance to bring the line to a store.

On the other hand, critics of the bill argue that fashion is, by its very nature, derivative.  As University of Virginia law professor Chris Sprigman put it:  “The fashion cycle runs on copying.  Copying is the fuel that makes it go.  Absent copying, the fashion industry would be smaller.  It would be poorer.”  Others, such as Sprigman, are also concerned that the bill would actually prevent small businesses from being able to enter the industry.  The threat of litigation, especially from large, money-backed fashion houses, may lead new designers to think twice about moving forward with this potential “price of admission” looming.  

It is uncertain whether copyright law will make its debut this year.  The members of Congress have adjourned until after November’s elections are over.   At that time, Congress will re-convene for a short “lame duck” session before the new members of Congress take their seats.  If the bill doesn’t pass by then, bill supporters will have to re-introduce it in 2013.  Senator Chuck Schumer (D-NY), who introduced the IDPA legislation, is no stranger to this process.  In 2010, he introduced the Innovative Design Protection and Piracy Prevention Act (S. 3728), which failed to advance.  Determined to protect the home of some of the nation’s leading fashion houses, the New York Senator has yet to show signs of quitting.