On August 6, 2010, New York Senator Charles Schumer introduced a new bill entitled the “Innovative Design Protection and Privacy Prevention Act” ("IDPPA”) which would amend the U.S. Copyright Act to grant certain protections to new and original fashion designs. While U.S. design patent and trade dress laws currently offer limited protections, the passage of the IDPPA would bring U.S. laws in line with those in the European Union, Japan and other foreign fashion markets that have long extended broader legal protections to unique and novel fashion designs.

The proposed bill, which Senator Schumer expects to be passed this fall, represents a compromise between leading fashion industry organizations such as the Council of Fashion Designers of America and the American Apparel and Footwear Association, which had been unable to reach a consensus as to the language in prior versions of the bill which was first introduced in 2006.

If passed, the IDPPA would provide protection to apparel (i.e., clothing, undergarments, gloves, footwear and headgear), accessory (i.e., purses, wallets, suitcases, bags and belts) and eyeglass frame designs. New designs are eligible for protection so long as they “provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles”. Unlike earlier unsuccessful versions of the bill, registration of fashion designs with the U.S. Copyright Office is permissible but not required. The proposed term of protection for new and original fashion designs under the IDPPA is three years after the date they are first introduced to the market, with any designs created prior to the effective date of the act remaining in the public domain.

To prevail on an infringement claim, the owner of a protected design must establish that: (a) the defendant’s design is “substantially identical” to the protected design (i.e., it is so similar in appearance that it is likely to be mistaken for the protected design and contains only merely trivial differences in construction or design) and (b) the defendant previously saw or otherwise had knowledge of the protected design. The presence or absence of color(s) or of a pictorial or graphic design work imprinted on fabric is not considered in determining whether a particular design is protectable or in the infringement analysis. The IDPPA limits damages for infringement to a maximum fine of $50,000 in the aggregate and $1 per copy.

The bill includes a “Home Sewing Exception” excluding from liability any person producing a single copy of a protected design for personal use or for the use of an immediate family member, provided such copy is not offered for sale or other commercial use during the applicable period of protection. In addition, as is the case under existing U.S. copyright laws, a party can rely on an “independent creation” defense as a complete defense to an infringement claim if it can establish that its allegedly infringing fashion design was independently created.