Should Fashion Design Be Given Copyright Protection?

January 3, 2013 marked the end of the 112th Congress and beginning of the 113th Congress, and with it, the death of the Innovative Design Protection Act of 2012 (IDPA). The bill, proposed by Senator Chuck Schumer in September 2012, would have amended Chapter 13 of the Copyright Act to include fashion design as a protected art form. The IDPA proposal was not the first time Congress considered providing copyright protection for fashion design. Since 2006, and most recently in 2010, Congress has contemplated passing laws similar to the IDPA. In 2012, the IDPA quickly gained the approval of the Senate Committee but still needed the vote of both the House of Representatives and Senate to pass. However, because the IDPA was not approved by the end of the Congressional term, it will now have to be reintroduced if any changes are to be made to current copyright law.

Fashion design in the U.S. currently lacks copyright protection. Section 101 of the Copyright Act states that “pictorial, graphic, and sculptural works” are only protected if the design can be separated from and exists independently of the usefulness of the article. In the U.S., fashion designs are not seen as having creative value, but are rather seen solely as utilitarian. To fix this seemingly unfair rule–music, art, literature, and poetry are all afforded copyright protection–the bill would give fashion designs copyright protection for three years. This safeguard would not include designs made three or more years before an infraction is filed. To file a suit against an infringer, the owner of the design would have to first notify the infringer of the violation. The owner is then able to file suit twenty-one days after this notification has taken place. However, if the two items are not nearly identical, or if the infringer has copied the design unintentionally, then the infringer will not be held liable. Whether or not one has copied unintentionally is determined by a totality of the circumstances test. As far as damages, the owner of the design is entitled to the damages that accrue from the sales after notification of the infringement has been made.

The IDPA, or a similar bill, would clearly benefit fashion designers. Stores such as Forever 21, infamous for its knock-offs, would be forced to pay damages to the original designer. Many big names in the fashion industry, such as the Council of Fashion Designers of America and the American Apparel and Footwear Association, advocate for this protection. To advocates, there seems to no reason why other artists, such as musicians and architects, should receive copyright protection and fashion designers should not. They point out that in other countries, such as France and Italy, fashion designs are already protected through copyright law. They argue that amending copyright law is the most feasible way to use intellectual property law to protect fashion designs. Patents are expensive and the process to file a patent is time consuming. In fashion, where trends are short-lived, it sparingly makes sense to file a patent for protection. Also, patenting a fashion design is itself difficult. The design must be novel, non-obvious, and useful, which together create a high bar to surpass. Trademark law also inadequately protects fashion designs. Trade dress protection is intended is to prevent confusion, rather than to prevent knock-offs. Moreover, to get trade dress protection, one must prove that the design has a “secondary meaning.” This too is hard to prove.

Opponents of the bill argue that knock-offs are healthy for the fashion industry, and that copyright law should not be applied to fashion as it is applied to other forms of art. In fashion, copying actually increases industry revenue and promotes creativity and innovation. The fashion industry itself revolves around the rise and fall of trends. Without the replication of certain designs, trends would not exist and revenue would decrease. Moreover, if knock-offs did not exist, consumers would have to pay more for a fashionable design as clothes would be more expensive to produce. Thus, amending copyright law may have a drastic effect on the fashion industry, similar in nature to the effect new copyright laws had on the music industry. In the music industry, new copyright laws led to a decrease in consumption of music, causing an eighty percent decrease in the industry’s revenue.

Others oppose the bill because they think the bill is too weak and inadequately protects fashion designers. The IDPA only allows for damages from sales made after notice of infringement has been given, not from all prior sales. The problem with this is that most of the money made from knock-offs is accumulated before notice of infringement. Thus, while a designer may win a copyright infringement lawsuit, the damages will likely not adequately reflect the true profits made from the knock-offs of the design.

The debate over the bill highlights the classic conflict between protecting design and rewarding a designer’s labor and originality, and ensuring that clothing can be made cheaply. The question, then, is the ultimate goal of the bill. Is it to protect the designers in the fashion industry or the industry itself? Can the two be separated? If fashion designers aren’t protected, can the industry continue to thrive? If the bill is eventually passed, will the fashion industry be irreparably injured? Only time will tell, but more likely than not the issue will be raised once again in Congress in the near future.

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