Fashion Design Protection: A Legal Trend with Legs

Fashion Design Protection: A Legal Trend with Legs

"Will fashion designs finally be clothed in 'copyright' protection?"

On the eve an Ides of July congressional subcommittee hearing on the Innovative Design Protection and Piracy Prevention Act (IDPPPA), this question leaves me torn between diving for my Swarovski crystal ball and donning my scholarly thinking cap.  American fashion designers have been seeking protection for a century, and exactly five years ago this month I testified before the same august body and left convinced that Congress understood creative designers' need for intellectual property protection.  That confidence - along with the specific arguments regarding the fashion industry's need for legal support - has remained unchanged, even as I've periodically joined the bill's proponents in parrying the thrusts of distressed design pirates and stitching negotiated alterations into the legislative text. 

The current fashion design protection bill, a cooperative effort of the Council of Fashion Designers of America (CFDA) and the formerly skeptical American Apparel and Footwear Association (AAFA), is the most narrowly tailored intellectual property law ever proposed, made to measure for the modern fashion industry. It is essentially the same as the version introduced in the Senate last July (details here) and includes both the highest barrier to frivolous lawsuits and the shortest term of protection of any IP law, as well as the most restrictive standard of infringement.  The bill nevertheless fills a gap in the law's wardrobe, offering important protection to fashion designers who struggle to realize return on their creative investments - particularly emerging and independent designers whose trademarks are not widely recognized and result in little legal protection. 

Despite having a name long enough to rival some pedigreed pooches and hereditary heads of state, the IDPPPA - or ID3PA as one Star Wars fan at the AAFA has dubbed it - has a structure worthy of its stylish subject matter.  Sleek enough for the speed of the internet era, classic enough to harmonize with evolving international intellectual property norms, cutting-edge enough to combat the shift away from domestic manufacturing, flexible enough to encourage trends and increase choice at all price points, and sufficiently on trend to capture the cultural zeitgeist that has made American fashion a creative force, it will benefit consumers and designers alike. 

I'd originally thought of this most recent version of the bill as much like a tight miniskirt, covering all the essentials while leaving quite a bit in the pubic domain, but perhaps a bit too brief.  I've since come to view it as more akin to a pencil skirt, narrowly tailored but allowing a decisive step forward, appropriate to the occasion even as some might wish for more coverage and others less, and ultimately a wardrobe essential.  Either way, this legal trend is back on the legislative agenda - and it's got legs. 

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