Congress has taken the idea of a fashion design copyright back off the cutting room floor, in an effort to create a new 3-year right of protection for fashion designs under Chapter 13 of the Copyright Act. On September 20, the Senate Judiciary Committee approved Senator Chuck Schumer’s Innovative Design Protection Act., S. 3523 (the “IDPA”), sending the law to the Senate floor for consideration. The text of the bill is available here.
As currently drafted, the IDPA would allow a fashion design to be protected if it includes original elements of an article of clothing or accessory (such as a bag or eyewear), or an original arrangement of elements. U.S. desingers would be able to enforce their rights against a “substantially identical” design.
While the definitions of these terms still leave a lot of room for interpretation, there are some clear parameters in place. The provision would not protect colors (though some protection is available under trademark law) or graphics on fabric (though traditional copyright protection is available there). Partial elements of an article, such as a sleeve, are outside the protection, since the legislation only protects the article as a whole. Other exemptions are made for items that are the subject of independent creation; for copying of the design for home use; and by carve-outs for retailers, consumers, and third parties such as ISPs and search engines. The IDPA would not extend protection to anything created prior to the enactment of the law.
The exemption for third parties is one of a few new elements that could give the 2012 draft bill some legs compared to previous efforts. Other updates are aimed at enforcement. For example, legal action could not be commenced until 21 days after the designer submits a notice to the defendant, and damages could not accrue until the date of that notice. These changes appear to be part of a compromise that has garnered the support of the American Apparel and Footwear Association and the Council of Fashion Designers of America, but the California Fashion Association is still staunchly opposed to the initiative.
Given the contentious nature of the election, and the significant issues facing the lame-duck Congress, it is not clear the bill will come to a vote in the Senate and even if it did, it is not clear the House could take action in time, especially in the face of sequestration issues. Put another way, federal spending, revenues, the deficit and the national debt are presumably the issues which will garner the limited time and attention likely to be available between now and the end of the session.