Congress Close to Protecting Fashion Designs under Copyright Law

Fashion design
Image by London College of Fashion short courses via Flickr

On July 13, 2011, Congress once again took up the the so-called “Fashion Bill” a/k/a the “Innovative Design Protection and Piracy Prevention Act,” H.R. 2511 (“IDPPPA”). This version of the Bill would amend the Copyright Act to extend certain protections to fashion designs.

Extension of design protection to fashion designs

The major effect of the law would be the extension of design protection to fashion designs, by amending § 1301(a) to provide that “A fashion design is subject to protection under this chapter” and by amending § 1302(b) to include “an article of apparel” in the definition of “useful articles” subject to protection. The bill would make clear that for purposes of Chapter 13 a fashion design is the appearance as a whole of an article of apparel, including its ornamentation. The bill elaborates on what would constitute “apparel” for purposes of Chapter 13:

  1. an article of men’s, women’s, or children’s clothing, including undergarments, outerwear, gloves, footwear, and headgear;
  2. handbags, purses, and tote bags;
  3. belts; and
  4. eyeglass frames.

Term of protection will be limited

The term of protection for fashion designs would be only 3 years. Proponents of the legislation have explained that the purpose of the legislation is to protect designs of haute couture during the period of time in which such high-end clothing is sold at premium prices of thousands of dollars and to prevent others from marketing clothing with those designs at substantially lower prices during that initial period, thereby undercutting the market for a hot new fashion design. Because the peak demand for such designs is relatively short-lived, a 3-year term is considered adequate to satisfy the designer’s reasonable expectation of exclusivity.