New York–Amended legislation that will provide three years of copyright protection to “unique and original” fashion designs has finally garnered the support of U.S. apparel, accessories and footwear manufacturers who had previously vowed to fight it.
The “Innovative Design Protection and Piracy Prevention Act” was introduced last week by U.S. Senator Charles Schumer, (D-New York) following a year of detailed negotiations with fashion industry stakeholders, and is now described as “a realistic and practical approach” to intellectual property protection. The bill is backed by the American Apparel & Footwear Association (AAFA) and the Council of Fashion Designers of America (CFDA), which represent an estimated 75% of the fashion industry.
The two groups say the legislation will for the first time allow creative American designers to benefit from legal protection against copying, and at the same time allow them to deliver fashionable and affordabe apparel and accessories to consumers. The new bill will provide a short, three-year term of protection to new and original fashion designs, while leaving every design ever created prior to enactment of the bill in the public domain.
Functional apparel items such as pants, shirts, socks, and underwear wouldn’t be covered by the bill. Instead, it targets articles of apparel and accessories that are used for artistic purposes such as runway shows. Likewise, a designer cannot “own” a color. Only deliberate copies that are substantially identical to protected designs will be prohibited by law, and neither consumers nor retailers will be liable for inadvertently buying or selling illegal copies. There is also an exception for home sewers who will be permitted to copy a protected design for personal use or the use of a family member.
As well as its clear, specific, and narrowly tailored scope of protection, the bill includes procedural provisions to discourage frivolous litigation. In particular, the plaintiff will have to plead specific facts establishing that he or she has a case. If a dispute does arise, a defendant will be entitled to show that the design in question was created separately and independently from the protected design, or that it was copied from a design already in the public domain.
Long Overdue Protection
Describing the law as providing the “long overdue protection our industry deserves,” CFDA executive director Steven Kolb added: “America is the world fashion leader, and yet it is basically the only industrialized country that does not provide protection for fashion design. “This bill is good news in that it promotes creativity and thus strengthens the fashion industry’s significant contribution to a healthy and working economy.”
Earlier attempts to provide copyright protection for fashion designs were said to be skewed towards high-end fashion designers, and would be costly to enforce.
Senator Schumer acknowledged that not every creative designer will feel that he or she is sufficiently protected but he said “the bill is a good first step.” He expected the bill to be passed this fall.