Tuesday, September 27, 2011

Protection under the Copyright Fashion Bill (ID3PA)

Author:  Jason Nardiello

The Innovative Design Protection and Piracy Prevention Act (HR.2511, formerly the IDPPPA, now called the ID3PA) is a proposed amendment to the Copyright Act. The bill (which I will refer to as the “Fashion Bill”) is now in its fourth version and if it passes, it will be the most significant law for both the apparel design industry and individual designers.

The aim of the Fashion Bill is to address a “loophole” in current IP protection for apparel. Under current copyright law, companies engaged in the wholesale copying of apparel--essentially pirates--do so with little threat of liability. This is the result of years of judicial decisions which, in the aggregate, now provide a substantial degree of immunity from copyright infringement for apparel copyists. In contrast, copying literature or music to the extent that apparel is currently copied would certainly be considered unlawful under copyright law.

On July 15, 2011 Congress again heard testimony in support of the passage of the Fashion Bill, which seeks to address this gap in the protection of apparel. The testimony and supporting documents can be found here.

Apparel protected under the Fashion Bill

To be subject to protection, the article of apparel must be new and novel. The types of apparel protected are:

  men’s, women’s or children’s clothing
  accessories (gloves, footwear, headgear, handbags, purses, wallets, duffel bags, suitcases, tote bags, and belts)

How protection is obtained under the Fashion Bill

In order to be protected under the Act, the article must be created after the enactment of the Fashion Bill.

Further, although registration is not required, design owners must include a notification on the article’s label along with the year and owner’s name.

What is not protected

  Designs more than 3 years old, measured from the time the design is made public
  Designs created prior to the enactment of the Fashion Bill
  Designs that are “substantially identical” to a protected design
  An advertisement, book, periodical, newspaper, photograph, broadcast or motion picture of an article of apparel (if you photograph a dress that is a protected design, the photograph would not infringe the Fashion Bill)

Other features of the Fashion Bill and some thoughts

To address objections that earlier proposed versions of the Fashion Bill were too protective of leading designers and would hinder competition, proponents of the Bill agreed to inclusion of the narrower “substantially identical” standard for infringement, which both advances the agenda of stopping pirates while still permitting “inspired by” designs . Under this standard, only a true copy would likely be actionable under the Fashion Bill.  For instance, companies such as Forever 21, which do not hide the fact that they copy hit designers and sell the clothing at a fraction of the original price of the authentic article, would likely find themselves in violation of the Fashion Bill, should it pass. Can you tell which dress is the original created by top designer, Jonathan Saunders and which is the one coped by Forever 21?

Here’s a hint: The dress on the right was offered for sale for $22.80 while the one on the left sold for over $1000. This kind of “reproduction” would probably not be considered merely “inspired by” but rather a substantially identical copy of a protected design.

If the Fashion Bill finally becomes law, the two biggest battle grounds for litigation will likely be centered on (1) what constitutes “substantially identical” and (2) what design is considered “new” or “novel” sufficient to trigger protection.

Through the author’s contact with general counsel of some luxury goods companies, future articles will discuss how some proponents of the Fashion Bill view “substantially identical” and “new” or “novel” under the Act. You may be surprised.