{"id":1155,"date":"2012-10-29T15:14:45","date_gmt":"2012-10-29T15:14:45","guid":{"rendered":"http:\/\/ncjolt.org\/?p=1155"},"modified":"2020-06-04T20:54:06","modified_gmt":"2020-06-04T20:54:06","slug":"bringing-ip-to-the-runway-the-push-for-fashion-copyrights","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/bringing-ip-to-the-runway-the-push-for-fashion-copyrights\/","title":{"rendered":"Bringing IP to the Runway: The Push for Fashion Copyrights"},"content":{"rendered":"

Sunday, October 28, 2012, by Holly Bannerman
\nOn September 20, 2012, the Senate Judiciary Committee approved the Innovative Design Protection Act of 2012 <\/a>(S. 3523) (\u201cIDPA\u201d).\u00a0 IDPA would protect apparel such as undergarments, outerwear, gloves, footwear, headgear; handbags, purses, wallets, tote bags, and belts; and eyeglass frames. The protections afforded to fashion designs in the bill are markedly different than most copyright laws in a few ways.\u00a0 First, the legislation would only provide three years of protection<\/a> for designs that “(i) are the result of a designer’s own creative endeavor; and (ii) provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.”\u00a0 As a general rule<\/a>, copyright protection lasts for the life of the author, plus an additional 70 years.\u00a0 Second, a designers seeking protection under the IDPA would have to show that the designs are \u201csubstantially identical,\u201d meaning an article of apparel that is \u201cso similar in appearance as to be likely to be mistaken for the protected design, and contains only those differences in construction or design which are merely trivial.\u201d\u00a0 Under traditional copyright law<\/a>, only a showing that the works are \u201csubstantially similar\u201d is required.\u00a0\u00a0 Finally, IDPA requires that an infringement of a fashion design shall not commence until 21-days after notice to the alleged infringer has been provided. \u00a0The notice shall contain specifics as to the alleged violation. \u00a0During that grace period, the alleged infringer is given the chance to cure the infringement.<\/p>\n

The line between copying a dress and using an existing dress as the inspiration for your own unique design is fuzzy.<\/p><\/blockquote>\n

Those in favor of the bill<\/a> believe that designers should receive the same legal protections as other creative artists (i.e.<\/em>, filmakers, authors, musicians).\u00a0 Fordham law professor Susan Scafidi raises concerns about the impact technological advancements, such as the Internet, have on the industry.\u00a0 She has argued in front of Congress that fashion designs can appear on a runway and be immediately uploaded to the Internet, and within days a similar product is available for sale before the designer even has a chance to bring the line to a store.
\nOn the other hand, critics of the bill<\/a> argue that fashion is, by its very nature, derivative. \u00a0As University of Virginia law professor Chris Sprigman put it:\u00a0 \u201cThe fashion cycle runs on copying.\u00a0 Copying is the fuel that makes it go.\u00a0 Absent copying, the fashion industry would be smaller.\u00a0 It would be poorer.\u201d\u00a0 Others, such as Sprigman, are also concerned that the bill would actually prevent small businesses from being able to enter the industry.\u00a0 The threat of litigation, especially from large, money-backed fashion houses, may lead new designers to think twice about moving forward with this potential \u201cprice of admission\u201d looming. \u00a0
\nIt is uncertain whether copyright law will make its debut this year.\u00a0 The members of Congress have adjourned until after November\u2019s elections are over. \u00a0\u00a0At that time, Congress will re-convene for a short \u201clame duck\u201d session before the new members of Congress take their seats.\u00a0 If the bill doesn\u2019t pass by then, bill supporters will have to re-introduce it in 2013.\u00a0 Senator Chuck Schumer (D-NY), who introduced the IDPA legislation, is no stranger to this process. \u00a0In 2010, he introduced the Innovative Design Protection and Piracy Prevention Act<\/a> (S. 3728), which failed to advance. \u00a0Determined to protect the home of some of the nation\u2019s leading fashion houses, the New York Senator has yet to show signs of quitting.<\/p>\n","protected":false},"excerpt":{"rendered":"

Sunday, October 28, 2012, by Holly Bannerman On September 20, 2012, the Senate Judiciary Committee approved the Innovative Design Protection Act of 2012 (S. 3523) (\u201cIDPA\u201d).\u00a0 IDPA would protect apparel such as undergarments, outerwear, gloves, footwear, headgear; handbags, purses, wallets, tote bags, and belts; and eyeglass frames. The protections afforded to fashion designs in the …<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/1155"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=1155"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/1155\/revisions"}],"predecessor-version":[{"id":7671,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/1155\/revisions\/7671"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=1155"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=1155"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=1155"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}