Significant Progress on US Legislative Change to Protect Fashion Designs:
In June 2011, the Council of Fashion Designers of America (“CFDA”) hosted its annual Fashion Awards – the fashion world’s equivalent to the Oscars®. Yet the biggest award granted to the industry came in December 2010 when the Senate Judiciary Committee unanimously passed the Innovative Design Protection and Piracy Prevention Act (the “IDPPPA”), which is the US fashion industry’s latest attempt to secure intellectual property protection for fashion designs. To date, under current copyright laws in the US, fashion designs have not been protected as they are deemed to be ‘useful articles’ and not works of art. Powerful players in the fashion industry, through the Council of Fashion Designers of America, have spearheaded lobbying efforts to revamp copyright legislation to encompass the fashion industry. The IDPPPA has been the most successful attempt.
Interestingly, at the CFDA Fashion Awards, Diane von Furstenburg, renowned fashion designer and president of the CFDA, on reflection of the IPPPDA’s success simply stated: “I don’t know that fashion is art. It’s design. But it has value and we have to protect it. It’s intellectual property.” Art or not, there are significant business reasons to protect a fashion design. Creative ingenuity is creative ingenuity, regardless of the medium, and intellectual property laws aim to protect that creativity. But valid questions about the impact that this kind of legislation may have remain:
- Can emerging designers afford to enforce their rights?
- Does this increase the influence of established designers, who presumably have deeper pockets and “litigation funds”?
- Will it negatively impact the high street brand that profits off of haute couture inspired pieces?
- Will the increased costs to the designer be offset by increased cost of clothes for the consumer?
The IDPPPA reflects its predecessor in that it is an amendment to the current US Copyright Act and provides short term protection (3 years) for fashion designs. (It is interesting to note, however, that existing US copyright protection is granted protection for the life of the author, plus an additional 70 years after the author’s death. Although the move to legislate specifically for the fashion design demonstrates a growing recognition of the intellectual property issues specific of the fashion industry, the stark difference in the duration of protection of fashion designs as opposed to copyrighted works indicates that fashion designs are not seen as equal creations.)
“Fashion design”, under the IDPPPA, is defined as:
“the appearance as a whole of an article of apparel, including its ornamentation, and includes original elements of the article of apparel or the original arrangement or placement of original or non-original elements as incorporated in the overall appearance of the article of apparel that are the result of a designer’s own creative endeavour, and provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles”
Thus, it is clear that the application of the IDPPPA within the fashion industry will be very select. The threshold for protection remains somewhat high in that it requires novelty and originality.
The test for infringement of a qualifying fashion design is “substantially identical”. However, the IPPPDA does contemplate where the overlap in design features is a “result of independent creation”.
In addition to the endorsement by the Senate, the IDPPPA is also supported by various segments within the fashion industry, such as the CFDA and also the American Apparel and Footwear Association (“the AAFA”). It is significant that the IPPPDA is backed by the AAFA, as the organization did not support the prior attempt at legislative change.