Curtailing Copycat Couture: The Merits of the Innovative Design Protection and Piracy Prevention Act and a Licensing Scheme for the Fashion Industry

Aya Eguchi

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U.S. intellectual property (“IP”) law, while protecting the logos and brand names of fashion houses as well as the fabric prints used on garments, currently does not provide protection for the actual fashion design itself.  It is usually permissible to copy the precise construction and design of a garment, even if the copy is virtually indistinguishable from the original.  Ironically, this lack of protection for fashion designs stems from U.S. copyright law itself, which states that copyright protection does not extend to “useful articles.”  Because the expressive and innovative components of fashion designs are most often not separable from their functional aspects, such designs have been left without any copyright protection in the domestic market.  Thus, one of the most creative aspects of the fashion industry—the actual design of the garments—receives no effective protection under the current U.S. legal system.

On July 13, 2011, the Innovative Design Protection and Piracy Prevention Act (“IDPPPA”) 1 was introduced into Congress, proposing to amend Title 17 of the U.S. Code and extend copyright protection to new and original designs for apparel and accessories.  This bill follows a bill introduced last year by the same name2, which passed the Senate Judiciary Committee before the Congressional session ended in December.  In order to address the conflicting interests of designers, retailers, and the consumer public, the IDPPPA provides limited protection for designs that are truly unique and distinguishable for a three-year term.  If passed, this bill would create the first statutory right for fashion-design protection in U.S. history.

This Editorial and the full-length Note on which it is based argue that the IDPPPA is a beneficial step toward achieving a balance between protection and innovation in the fashion industry.  The bill would properly protect the most creative designs while maintaining the industry’s flexibility to build upon trends through permissible use of previous designs.  The fashion industry is in need of such design protection, particularly in light of the changing face of the global fashion market.  This Editorial and Note further suggest the coupling of IDPPPA copyright protection with a licensing business model to address some of the remaining shortcomings of the IDPPPA.  A licensing scheme in collaboration with the IDPPPA would foster a productive relationship between designers, manufacturers, and retailers, even beyond the three-year copyright term granted by the bill’s provisions.

I. The Current State of the U.S. Fashion Industry

The United States is somewhat of an anomaly in the global fashion market in that it has yet to develop any IP regime that explicitly protects fashion designs.  Both the European Union and Japan—two markets that lead the fashion industry along with the United States—have already adopted laws that protect fashion designs, making the United States one of the few remaining markets with a tolerant stance toward the “copy-and-sell” scheme.  The United States’ divergence from these other countries in not granting fashion-design protection stems from the fact that the short life-expectancy of fashion designs, as well as their functional purpose as clothing, pose significant obstacles in applying the various tenants of U.S. IP law—namely, trademark, patent, and copyright—to the fashion industry.  While current trademark law can adequately protect logos, names, and other symbols placed on apparel, it does not extend to entire articles of clothing.  Similarly, U.S. patent law, which provides the most robust form of IP protection for original designs, poses qualification criteria that are too rigid for fashion designs, averting designers from seeking this option.  Moreover, considering that designers produce several different lines for each three- to six-month season, the length of time required to acquire a patent is prohibitively long and the costs prohibitively expensive for designers to seek patent protection for their designs.

In comparison to trademark and patent protection, copyright protection is quick and convenient to obtain, as it is acquired as soon as the design is fixed into concrete form; thus, designs obtain constructive legal protection at the instant they are drawn on paper.  However, while copyright law protects “original works of authorship,” which include graphics and text, it excludes “useful articles” that have intrinsic utilitarian functions.  Fashion accessories are considered decorative items—hence nonfunctional—and are eligible for copyright protection, but the shape and design of the apparel are considered to be “utilitarian” and not eligible for protection.  As a result, copyright protection extends only to the completely decorative elements of the garment, like the patterns or images on the fabric, and not the design itself.

In considering the lack of protection for fashion designs, a natural question arises as to why U.S. IP law has been so restrictive in granting protection specifically to this area of work.  Scholars have argued that one likely reason for this discrepancy is that the fashion industry actually benefits from copying: copying fuels the creation of trends in the industry, which, in turn, spurs the growth of the entire market.  Because the average fashion consumer is fickle and may refuse to buy a new offering, fashion companies work with each other to exploit trends in a mutual manner, allowing for a greater chance of success in winning the consumer’s approval over each newly released design.  In this scheme, the “guilty copyists” actually become the grease on the wheels, rapidly delivering haute couture designs to the average consumer and spreading new trends to the greater populace in the process.

Moreover, fashion, at its core, is a highly imitative field in which designers are often influenced by the same sources as well as by each other.  Designers continually recycle ideas in their designs, and these ideas themselves are made up from a standard repertoire of “parts”—sleeves, hems, pockets, and panels.  Drawing the line between those designs that are original and those that have been derived from some other source is a fairly complex task.  The industry thus seems to have accepted the norm of copying as part of its culture: some scholars have gone as far as to say that fashion firms have accepted appropriation of designs as a “fact of life,” noting that this diffidence stands in striking contrast to the heated condemnation of piracy in other creative industries.

However, while the culture of copying was tolerated during the fashion industry’s “older” era, when copying was a slower process that allowed the original designer to make use of a first-to-market advantage, the advent of digital technologies, the Internet, and a globalized outsourcing economy has started to shift this equilibrium.  Fashion copycats can now take digital photographs of new fashion items, transmit them to overseas factories for reproduction, and place these designs on the market before the company that originated the style can.  Because of these new technologies, the original designer no longer has the competitive advantage.  In light of these changes, the fashion industry needs to adopt an IP regime that properly fosters designers’ incentives to innovate and spurs the emergence of a new generation of designers.

II. Protection and Innovation under the IDPPPA

The new Innovative Design Protection and Piracy Prevention Act (“IDPPPA”) amends Chapter 13 of the Copyright Act to extend copyright protection to fashion designs for a term of three years.  As defined in the bill, the term “fashion design” includes apparel as well as ornamentation, and protection would extend to clothing (including undergarments, outerwear, gloves, footwear, and headgear) and accessories (including handbags, purses, wallets, tote bags, belts, and eyeglass frames).  Unlike other works protected by copyright law, a fashion design would obtain protection upon the first public display of the work, and its protection would only last for a period of three years.  Designs created prior to the enactment of the bill would not fall under these provisions and would be dedicated to the public domain.

The IDPPPA implements measures to discourage frivolous litigation, appeasing opponents’ concerns, by including a “substantially identical” infringement standard, a heightened pleading standard, and a home sewing exception.  The “substantially identical” infringement standard means that, in bringing a case against potential infringers, designers have the burden of establishing that the accused design is “so 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.”  Similarly, the heightened pleading standard requires designers to show that the design was available in a location and manner in which “it can be reasonably inferred from the totality of the surrounding facts and circumstances that the defendant saw or otherwise had knowledge of the protected design.”  These two elements function to limit the instances in which a designer can raise infringement claims to those in which there is substantial evidence of copying.  Finally, there would be an exception for individuals who sew clothing for personal use, which would allow an individual to copy a protected design for bona fide, non-commercial use.

The IDPPPA’s greatest success lies in its ability to strike a balance between design protection and incentive to innovate.  It achieves this balance by raising the bar for protection to only those designs that are truly original: it would thus maintain designers’ incentives to create original pieces that meet this threshold, while preserving enough leeway for these designs to be used as trend-starters.  The Act would protect designs that provide “unique, distinguishable, non-trivial and non-utilitarian variation[s] over prior designs,” but it would also set a reasonable threshold for claiming originality in these designs.  This originality standard thus functions to protect only a narrow range of designs from direct copying.  The key here is that the new bill places responsibility on the designers and “compel[s] them to endow their designs with specific creative elements that fit the stringent criteria.”  Moreover, through granting protection for a short, three-year term while leaving every design created prior to the enactment of the act in the public domain, the IDPPPA successfully protects innovative designs without threatening to establish a monopoly over techniques essential to the industry.

Furthermore, the IDPPPA could spur creativity in the mass retail sector, especially for “fast-fashion” retailers who currently rely solely on copying designs for their new fashion lines.  Because these retailers will no longer be able to blatantly copy high-end designer items, they will most likely put more resources into creating unique products and establishing distinctive design branches within their own companies.  For the consumer, the end result will be the creation of more options and a wider array of trends from which to choose.  Thus, from the perspective of the designer, retailers, copyists, and consumers, the IDPPPA confers considerable benefits, proving that the bill is a significant step forward for both U.S. IP law and for the fashion industry.

III. Coupling the IDPPPA with a Copyright Licensing Scheme

While the IDPPPA is a beneficial step in achieving a balance between the protection of designs and the productivity of the fashion market, its merits can be further enhanced by implementing a copyright licensing scheme that revolves specifically around the usage of fashion designs.  Just as fashion houses currently license the use of their logos and trademarks to other designers and manufacturers, designers can license the use of their designs in return for upfront fees or royalty payments.  Designers across the entire hierarchy of the industry would benefit from such a scheme.  Up-and-coming independent designers could license their novel designs to larger fashion houses, protecting themselves from forceful stealing of their designs by these power houses, while high-fashion designers could license their innovative runway designs to “fast-fashion” retailers to ensure fair usage of their work.

For the independent designer or startup fashion house, this licensing model would provide significant financing possibilities during the individual or company’s growth phrase.  By licensing out its designs to retailers or other fashion houses, the designer can obtain royalties and establish a steady revenue stream from an early stage in the production process.  The designer can then funnel these profits back into the creation and development of new designs.  This scheme thus establishes a financial backbone for up-and-coming designers and incentivizes design activity, potentially creating more growth for the entire fashion industry.

Furthermore, in terms of productivity, a copyright-licensing model would increase the overall efficiency of the industry, as it would allow each party to specialize in and allocate resources to the functions that it performs best.  For example, in the case of an independent designer who does not have the necessary manufacturing, marketing, and distribution capabilities, a licensing model would allow the designer to shift such peripheral functions to other parties like a “fast-fashion” retailer who has special expertise in these areas.  The designer would then focus solely on the innovative aspect of creating the original design, while the “fast-fashion” retailer would focus on producing and delivering these designs to the market—all under a regulated licensing scheme, unlike the precarious copying scheme that currently exists in the industry.

Such a licensing business model, coupled with the IP protection granted by the IDPPPA, would not only increase designer incentive even more but would also foster a healthy and productive relationship between designers, manufacturers, and retailers, which would extend beyond the three-year term of the copyright protection.  This model would potentially benefit both the original designer and the “copyist.”  It would enable original designers to obtain licensing fees for their designs (hence promoting innovative and “copy-worthy” designs), while allowing other manufacturers and designers to lawfully build upon these designs without the risk of litigation.  In essence, the copyright protection conferred by the IDPPPA will place designers, retailers, and fashion houses on equal grounds to negotiate fair and efficient copyright licensing agreements, and, in turn, these licensing agreements will enable all parties to extract the greatest economic value out of innovative fashion designs.  The end result would be a brighter, healthier, and more vigorous future for the fashion industry, a future in which collaboration, instead of imitation, fosters the creation of innovative designs.

Acknowledgments:

Aya Eguchi is a 2012 graduate of Cornell Law School.

This Editorial is based on the Article, Aya Eguchi, Curtailing Copycat Couture: The Merits of the Innovative Design Protection and Piracy Prevention Act and a Licensing Scheme for the Fashion Industry, 97 CORNELL L. REV. 131 (2011).

Copyright © 2012 Cornell Law Review.

  1. Innovative Design Protection and Piracy Prevention Act, H.R. 2511, 112th Cong. (2011).
  2. Innovative Design Protection and Piracy Prevention Act, S. 3728, 111th Cong. (2010).

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