Current United States Copyright Law does not protect the overall appearance of fashion design.  However, if the sponsors of a pending Senate bill have their way, that might change in the near future.

Copyright law protects original works of authorship but expressly does not protect what are known as “useful articles.”   Unfortunately for fashion designers, the definition of  “useful articles” includes much of what is thought of as fashion design.  As a result, while it is sometimes possible to obtain copyright protection for a discrete, original and non-useful design that is sewn onto a dress, it typically is not possible to protect the appearance of the dress itself.  This has had a profound effect upon the fashion and retail industry because it effectively precludes copyright protection for the appearance of designer clothing, handbags, shoes and the like.  While this situation is bad for designers it is beneficial to many retail stores that are able to sell popular new designs without fear of becoming a defendant in a copyright infringement suit.

Legislation is pending in the Senate that would extend the scope of copyright protection to cover “fashion designs.”  The Senate bill, known as “The Innovative Design Protection and Piracy Prevention Act” (S. 3728), which was introduced by Charles Schumer (D-NY) this summer, seeks to include a broad array of  “fashion design,” ranging from clothing to eyeglass frames, within the scope of copyright protection.  Protection under the bill would be directed to the “appearance as a whole of the article of apparel, including its ornamentation” and include “original elements of the article of apparel or the original arrangement or placement of original or non-original elements as incorporated in the overall appearance of the article.”  Under the proposal, copyright protection for fashion designs would only last a period of three years from the earlier of (a) the date of publication of a copyright registration or (b) the date the design is first made public.  The length of the protection offered is decades shorter than that afforded to virtually  all other copyrights but it would provide tremendous benefits to designers during the all-important early life of new fashion designs.  Conversely, it would create new and largely unwelcome challenges for many retail stores who will need to find ways to  insure that the high fashion clothes they select for sale to the public do not infringe some designer’s copyright rights.

Although a similar House version of the bill appears to have stalled, the Senate version was very recently approved by the Committee on the Judiciary and has now moved on for consideration by the full Senate.  Things are rather busy in the waning days of this particular Congress and it is entirely possible that this bill will suffer the same fate as similar failed bills in years past.  Supporters of the bill, however, are reported to be cautiously optimistic that it will get passed prior to the rapidly-approaching end of the Congressional term.  If not, they are certain to try again next year.  We will keep you posted.

Content for this post was provided by Dickerson Downing and Scott Bittman in the New York office of Crowell & Moring.