Fashion Legal News and Jargon

On August 5, 2010, Senator Schumer introduced the Innovative Design Protection and Piracy Prevention Act ("IDPPPA"). The IDPPPA, if passed, would amend the law currently under effect which allows copyright protection for the original design of a useful article which makes the article attractive or distinctive to the purchasing public. Under the current statute, a "useful" article is limited to a "vessel hull or deck." The IDPPPA would thereby extend the protection of the current statute to fashion design. This means copycat giants like Forever 21 and Steve Madden will become immensely vulnerable to copyright infringement lawsuits.

I have mixed feelings about the statute. As a fashion lawyer who deals with intellectual property enforcement and protection on a daily basis, I wholeheartedly agree that it's crucial to give brand owners the power and the tool to enforce their rights to protect their original designs. But on the other hand, I'm worried about the stringency of the new statute and its potentially crippling and polarizing effect on the marketplace not to mention the inundation  of frivolous lawsuits. What will constitute infringement? Must you copy the design seam for seam? Or will an "inspired by" look suffice? Fashion is complex  world full of abstractions and subtleties. Is it really fair to place the judgement of fashion in the hands of people (judges and jurors) who may not have a clue?

1 comment

  1. Whether or not a design is really original and ‘was seen in the marketplace’ is not something that can be answered in court effectively. By the time an issue gets to court, defendants will have already expended huge sums in defense, and in research to show that the item was NOT original to the plaintiff in the first place.. High end-designers, and their attorneys, will be encouraged to sue retailers, manufacturers, and even other designers in hopes of settling out of court, because claiming a design copyright under S.3728 costs them nothing, (no copyright fee, no registration, no research) while the costs of fighting an infringement claim in court are literally prohibitive.

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