A new bill proposes copyright protection for US fashion designers

A new bill proposes copyright protection for US fashion designers

The US fashion industry has been pushing hard over the last four years for copyright protection for its designs, yet at the same time struggling to find a workable solution.

Previous attempts to find ways to shield designs from piracy and at the same time encourage the creativity and innovation on which the fashion industry thrives were dismissed as being too skewed towards high-end fashion designers, costly to enforce, a logistical nightmare to implement, and stifling creativity. There was also the threat they could lead to higher clothing prices to cover the extra staff needed to register designs and possibly defend them in court.

So not for nothing did last year’s attempt at introducing the legislation earn itself the unwelcome moniker the “fashion police” bill.

But now, it seems, some headway has finally been made, and both the American Apparel & Footwear Association (AAFA) and the Council of Fashion Designers of America (CFDA) are putting the weight of their support behind the latest 'Innovative Design Protection and Piracy Prevention Act.'

The new bill will provide a short, three-year term of protection to new and original fashion designs – like those used for runway shows – in a move that ensures every design ever created prior to its enactment remain in the public domain.

For instance, functional clothing items such as pants, shirts, socks, and underwear wouldn't be covered, and neither would a pair of Capri pants because they already exist. Likewise, a designer cannot "own" colours, shapes and pictures appearing as patterns imprinted on fabric.

It also recognises that trends regularly develop at the same time, since designers all feed from the same inspirations as they attempt to tap into the mood of consumers, be it long-term colour and fabric forecasts or dipping into everything from the art world to the ‘street’ in an attempt to hit the right emotional temperature.

To this end, the bill recommends that no infringement has occurred if two or more identical garments are created independently of each other. It also allows copying of designs already in the public domain.

Only deliberate copies that are substantially identical to protected designs will be prohibited by law, and neither consumers nor retailers will be liable for inadvertently buying or selling illegal copies. 

In other words, the bar is extremely high as to what qualifies as a unique and distinguishable fashion design. And the responsibility is on the designer or company that owns the design to prove there is a case to answer.

A complicated legal process is also proposed to discourage frivolous lawsuits, in which the onus is on the claimant to prove he has a case. If a dispute does arise, a defendant will be entitled to show that the design in question was created separately and independently from the protected design, or that it was copied from a design already in the public domain.

While there will always be debate about whether the current lack of copyright protection actually stimulates creativity, or the point at which one designer starts a trend that inspires another, the bill does at least give the fashion industry a new option to protect its most unique designs.

And unlike past proposals, which would have made the process of designing and creating a garment something of a legal minefield that every producer and brand in the apparel and footwear industry would have had to navigate, it seems to have been compiled with the needs of a vibrant, fast-moving creative industry in mind.