Fashion designs, unlike most other creative works, are not protected under current U.S. copyright law. The reason is that articles of clothing are generally considered "useful articles," not works of art, thus outside the scope of the Copyright Act. This was the same rationale that excluded boat hull designs from copyright protection until Congress passed the Vessel Hull Design Protection Act in 1998. Building on this previous expansion of the Copyright Act, the Design Piracy Prohibition Act (H.R. 5055) proposes to extend copyright protection to fashion designs. The bill was recently introduced by Representative Robert W. Goodlatte (R-Va.) of Roanoke, Va., a member of the House Judiciary subcommittee on intellectual property, along with Representatives William D. Delahunt (D-Mass.), Howard Coble (R-N.C.), and Robert Wexler (D-Fla.). The bipartisan bill is also co-sponsored by Representative F. James Sensenbrenner (R-Wis.) and has been referred to the House Judiciary committee. Currently, no related bill has been introduced in the Senate.

The bill proposes to close a loophole that currently allows third parties to legally copy, reproduce and sell knock-offs of an original design as long as a fake label is not attached to the goods. The bill would give copyright protection to fashion designs for three years if the design is registered within three months after it is first made public. "Fashion design" is broadly defined as "the appearance as a whole of an article of apparel, including its ornamentation." Protection would extend to a wide range of "apparel," including clothing, gloves, footwear, headgear, belts, eyeglass frames, and handbags, purses and tote bags.

Representative Goodlatte cited the relatively short life cycle of fashion designs and the inability of most designs to qualify for design patent protection as evidence of the need to amend the Copyright Act. He also noted that designers lose profits to copiers and that poor quality knock-offs damage designers’ reputations. The bill would establish both direct and secondary liability for the copying of a registered design and sets damages at the greater of $250,000 or $5 per copy.

Anthony Lupo
202.857.6353
lupo.anthony@arentfox.com

Halle Markus
202.857.6113
markus.halle@arentfox.com