Fashion Law and the IDPPPA

Fashion lawyers must have a thorough understanding of the intellectual property issues that arise in the fashion industry. Copyright, patent, trademark and trade dress laws all play into the IP strategy of fashion, apparel, and e-commerce companies. What most non-lawyers may not know is that trademark is really the only effective form of IP protection that fashion designers and apparel brands can receive. Ever wonder why logos are slapped on so many handbags, eye-wear, shoes, and apparel? That's the influence of lawyers telling designers and apparel companies that if they want to effectively protect their work, logos will allow their designs to receive trademark protection. Hence, the phenomenon that legal scholars have dubbed as the logofication of fashion. Why is this happening? Because unlike in Europe, fashion has yet to receive copyright protection in the United States. Our legal system considers fashion as a useful article, or an article that has an intrinsic utilitarian function, and copyright protection does not extend to such articles. The policy reason for excluding useful articles was so that the Copyright Act would draw a clear a line as possible between copyrightable works of applied art and uncopyrighted works of industrial design and to limit the ability of manufacturers to monopolize designs dictated solely by the article’s function.

Copyright protection is a powerful tool because it begins as soon as a design is reduced into a "fixed" form of expression (i.e. painting, music, etc.) and is not as expensive as receiving other forms of protection, like patents. In fashion, only fabric prints and jewelry can receive true copyright protection. For example, Rick Owens has no claim for all the knockoffs of his original deconstructed leather jackets, but Diane Von Furstenberg has a claim for all her printed wrap dresses. Many efforts have been made to amend the Copyright Act so that it affords protection to fashion.

Advocates for copyright protection believe that this will not only protect designers and afford them time to get their designs into stores before fast-fashion retailers, but it will also encourage more "original" designs and end the cycle of line-by-line knock-offs. Opponents for copyright protection argue that the fashion industry thrives off of this cycle and copyright protection would create a huge economic burden.  However, what opponents may not realize is that often times the designs that are knocked off by copyists are the works of emerging designers who are just starting to build their brand and company. Despite the debate and differences of opinion, it is clear that some form of protection is needed.  The most successful legislative effort has been the Innovative Design Protection and Piracy Prevention Act, or IDPPPA. The legislation received approval from the Senate Judiciary Committee in 2010 and has been backed by the CFDA, AAFA, and many legal scholars. 

The IDPPPA expands the protection offered to designs under Title 17 of the Copyright Act to also include “fashion designs” and “articles of apparel.”  In sum, the legislation creates three new legal standards:

1. An originality standard that provides protection if designs are proven to be a “unique, distinguishable, nontrivial, and nonutilitarian variations over prior designs;
2. An infringement standard, defined as “substantially identical;” and
3. A heightened pleading standard, requiring the plaintiff in a lawsuit to prove that the design is protectable, substantially identical, AND that the defendant had access to or was aware of the protected design

Once the fashion work's originality is established according to the standards set forth in step one, the designer is offered up to three years of protection. The shorter time period is considered to be more appropriate for the evasive and cyclical nature of fashion, allowing enough time for designers to introduce their “original” and “unique” garments without fast-fashion retailers copying them, but also allowing items to go into the public domain and have trends take into effect. 

In order to avoid flooding the courts with frivolous claims, IDPPPA only allows designers to claim infringement if the article of clothing is substantially identical. This is considered a higher standard than the current standard for general copyright infringement of substantial similarity. While IDPPPA is the most successful attempt at amending the Copyright Act to include fashion works, it has yet to be signed into law.

The video above is a Bloomberg Law inteview of Susan Scafidi, a fashion law prioneer who has testified before Congress as a proponent of copyright protection for fashion works and whose efforts has helped foster the success of the bill. The video shows her discussing the IDPPPA and the need for copyright protection for fashion works. TFG has had the privilege of being taught by Scafidi and her interview is a testament to her amazing teaching abilities as well as her work.

TFG will continue to offer more detailed posts about IDPPPA and IP issues in fashion. For a full copy of IDPPPA, click here.