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On December 1, 2010, the Senate Judiciary
Committee agreed to send the bill titled the Innovative Design Protection and
Piracy Prevention Act (S. 3728) (the "IDPPPA") to the full Senate for a vote.
The bill was originally introduced by Sen. Charles E. Schumer (D-N.Y.) on
August 5, 2010. The decision to send the IDPPPA for a full Senate vote not only
suggests a forthcoming change in U.S. Copyright law bringing it closer to
protection already provided in the European Union and Japan, but also marks a
significant advancement for the long-overlooked proponents of intellectual
property protection for fashion design.
Under the current law, fashion designs do not receive explicit intellectual
property protection. The effort to remedy this has been marked by several
failed attempts, including legislation introduced in the House last year under
the title of the Design Piracy Prohibition Act of 2009 (H.R. 2196).
The success of the IDPPPA, however, appears promising. The current presentation
of the IDPPPA would append "fashion designs" to Chapter 13 of the Copyright
Act, which currently addresses protection for vessel hull designs. Thus, not
joining its brethren of protected works under 17 U.S.C. § 102, fashion design
would occupy a unique niche under the Copyright Act.
"Fashion design," as defined under the proposed legislation, includes articles
of men's, women's, and children's clothing, handbags, purses, wallets, tote
bags, belts, and eyeglass frames. Patterns and colors, however, are not
protected elements. Unlike other works protected by Copyright law, fashion
design protection would arise upon the first public display of the work and
last for three years. This legislation, however, would not cover designs made
public before its enactment.
Borrowing from trademark law, the IDPPPA sets a high standard for a designer to
meet in enforcing its rights. Under the IDPPPA, an owner of a protected work
must show that the allegedly infringing article is "substantially identical" in
appearance to the protected design that it is "likely to be mistaken for the
protected design, and contains only those differences in construction or design
which are merely trivial." In addition to this high threshold, an owner
of a protected work must show that the defendant "saw or otherwise had
knowledge of the protected design."
Several defenses and exceptions are built into the IDPPPA. Among these include
the "home sewing exception," protecting individuals who produce a single copy
of protected design for personal or immediate family use. The IDPPPA also
excludes from infringement illustrations or pictures of a protected design in
advertisements, books, periodicals, newspapers, motion pictures, or other
similar mediums. As drafted, the IDPPPA does not provide for secondary liability,
thus excluding retailers and customers who inadvertently sell infringing
designs from liability. Independent creation is also a defense to infringement
under the IDPPPA.
The full Senate vote on this groundbreaking legislation is anticipated to occur
before the December recess.
Copyright © Finnegan, Henderson, Farabow, Garrett & Dunner, LLP. This
article is for informational purposes, is not intended to constitute legal
advice, and may be considered advertising under applicable state laws. This
article is only the opinion of the authors and is not attributable to Finnegan,
Henderson, Farabow, Garrett & Dunner, LLP, or the firm's clients.