Copyright Protection Compromises are Always in Fashion - Fordham Intellectual Property, Media & Entertainment Law Journal
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Copyright Protection Compromises are Always in Fashion

Copyright Protection Compromises are Always in Fashion

The Innovative Design Protection and Piracy Prevention Act (the “IDPPPA” or “Fake Fashion Bill”) is a bill introduced by New York Senator Chuck Schumer intended to provide long-awaited copyright protection to original fashion designs, including apparel, handbags, and accessories.  The bill, brought in August 2010, is a compromise to its problematic predecessor, the Design Piracy Protection Act (“DPPA”), which many deemed too broad.  The CFDA (Council of Fashion Designers of America), a proponent of the original legislation, and the AAFA (American Apparel and Footwear Association), a designers’ organization that had expressed concerns, have come to an agreement on the terms of the new bill.  The bill was unanimously approved by the Senate Judiciary Committee in December of last year, and will need Senate, House, and Presidential approval before becoming law.

Here is a rundown of the changes from the DPPA:

The Fake Fashion Bill, like the DPPA, offers a short, 3-year protection term only to truly original designs; designs must be new and unique to qualify.  Also adopted from the DPPA (and similar to general copyright law) is the availability of the “independent creation defense,” which allows a defendant to avoid liability if she designed the unique item independently of the plaintiff’s design.  The new bill also retains the “home sewing exception,” which prevents lawsuits over homemade copies created for personal use, a fair-use-style provision.

Unlike the previous bill, however, the Fake Fashion Bill absolves designers of the registration requirement.  Creators would no longer need to register new designs in order to be eligible for protection; the copyright would trigger automatically the first time the design is seen in public.  This will ease the burden and expense for emerging designers who may not have the money or savvy to register each design.  However, the new bill heightens the pleading standard, placing a heavier burden on potential plaintiffs.  Plaintiffs will now have to prove three things:

1. That their design had not existed and that it is wholly original. The plaintiff must prove it is “a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs.” The difference cannot be fabric print or color, nor a concept within the public domain amounting to “trend.”

2. Plaintiffs must prove a defendant’s design is “substantially identical,” a standard similar to that of trademark law, requiring that consumers are likely to confuse the product with the original.

3. The plaintiff must prove that the defendant had the opportunity to have seen the design before it was released for public distribution. This heightened standard should placate opponents of the legislation, who feared frivolous litigation.

Additionally, the damages provision, which had previously been capped at $250,000 or $5 per copy now allows only for a maximum of $50,000 or $1 per copy.

How would this law affect designers and consumers?  In a post last spring on the New York Times’ Freakonomics blog, Kal Raustiala of the UCLA Law School and Chris Sprigman of the University of Virginia Law School illustrated the inherent paradox in fashion piracy protection:

“The interesting effect of copying is to generate more demand for new designs since the old designs—the ones that have been copied—are no longer special. The overall result is greater sales of apparel.”

This suggests that copying is beneficial not only to consumers, who have the ability to purchase the fashionable duplicate goods at lower prices, but also the designers, who are forced to design anew, leading to increased sales.  The trouble with this argument is that, while forced invention may increase apparel sales overall, these new, original designs will likely be copied instantaneously by the likes of Zara and A.B.S., leaving the truly innovative with a very small piece of the sales pie.  With its hyper-strict pleading standard, the revised law will temporarily protect the truly original from true knockoffs, while still allowing for mass-market, affordable creations cautiously inspired by designer looks.  Now that’s an idea we can all buy.

Hannah Steinblatt

Hannah Steinblatt is a 3L at Fordham Law. She grew up on Long Island and currently resides in Brooklyn (but not the cool part) with her husband. She likes art, fashion, poodles, and grammar. She also has an unhealthy obsession with ketchup. Hannah hopes to pursue a career in litigation.