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Fashion Designs to Get Copyright Protection?

By Tanya Roth, Esq. | Last updated on

One small step for stilettos, one giant step for fashion designs and copyright protection? 

The Senate Judiciary Committee has just passed the Innovative Design Protection and Piracy Prohibition Act (IDPPPA) granting limited copyright protection to fashion designs. Bills protecting the work of fashion designers have come up before in both the Senate and the House, but have never made it out of committee.

For both major fashion houses and small independent designers, this bill would represent a major breakthrough which has been lobbied over and worked on for years, reports The Wall Street Journal. The IDPPPA bill is sponsored by Sen. Charles Schumer and grants copyright protection to original and novel designs for a period of three years. In fashion time, that equals about a decade.

Susan Scafidi, director of the Fordham Fashion Law Institute breaks down the IDPPPA in her blog. It seems that independent designers and small businesses need not worry too much about the big fashion houses coming down on them if they happen to create similar designs independently. Based on Scafidi's explanation of the law, there are three limitations on actions under the act which may be important to the smaller designer:

1. There is an "independent creation" defense. This means if you design something entirely on your own that happens to overlap with another's design; it can be a defense to a copyright infringement action.

2. Home sewing exception. If you create, cut and sew on your own, there is this kind of "fair use" exception (like in regular copyright law) to protects amateurs from, as Scafidi puts it, closet raids by the fashion police looking for infringers.

3. Substantially identical standard. This standard says that in order for one design to be found to infringe on another, the two must be "substantially identical." In practical terms, it seems you would really only get two separate dress, shoes or scarves that are that close in appearance if there were some kind of intent to copy. If not, see item No. 1.

Fashion designers both large and small should be glad and grateful the new bill has come this far, after a great deal of work by individuals and constant attention by the Council of Fashion Designers of America (CFDA). The bill, if it becomes part of copyright law, it will be an amendment to Chapter 13 of the Copyright Act -- and a major design upgrade at that. Currently, Chapter 13 deals with the protection of design for ships hulls.

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