House Considers Protection for Fashion Designs

This article is reprinted with permission from the June 22, 2006 issue of World Copyright Law Report.

Representative Robert W Goodlatte (R-VA) has introduced a bill, HR 5055, into the US House of Representatives. If passed the bill would significantly change US copyright law by extending copyright protection to fashion designs for a three-year period.

Existing US copyright law affords no copyright protection to fashion designs because they are considered to be 'useful articles'. Under the proposed law, fashion designers who register their fashion designs within three months after the date on which the design is first made public would have exclusive rights to that design for a period of three years.  Infringers could be held liable for copying the apparel or accessories themselves or for copying an image of the designs, so long as they had actual knowledge of the copyright protection or "reasonable grounds to know that protection for the design is claimed".

This notice requirement could be interpreted to require fashion designers to place a copyright notice on their labels. Damages for infringement of a registered fashion design would be the greater of $250,000 or $5 per copy.

Until now, what protection fashion designers have been able to get for their designs in the United States has only been obtainable by demonstrating that the fashion design is or contains a trademark of the designer, or is under a trade dress or unfair competition claim.  However, in order to prevail under these causes of action the designer has to show that the fashion design has acquired secondary meaning. That is, he or she must prove that consumers have come to recognize a design feature or the entire design as identifying the source of the garments. Proving secondary meaning is difficult for any product, but is particularly difficult for fashion designers. Most fashion designs are not in the marketplace long enough to acquire such distinctiveness.

Designers including Diane Von Furstenberg, Narciso Rodriguez and Zac Posen have been active in lobbying Congress for protection of their designs. They argue that every developed country except the United States offers fashion designers protection for their original works. They also point out that the fashion industry generates $350 billion in the United States and that the practice of copying many popular fashion designs has become widespread. For instance, Rodriguez designed the white slip wedding gown worn by Caroline Bessette Kennedy in 1996, a style that has since been seen in wedding gowns worn by innumerable brides. Von Furstenberg's signature wrap dresses have been copied so many times that she may no longer wish to be associated with them.

Not everyone favours the legislation. Opponents have argued that protecting original fashion designs will make fashion unaffordable to the average American and will result in higher clothing prices. Retailers are not expected to be very vocal about the proposed legislation. Major department stores have private labels, which often include close copies of designer looks. However, they also do business with the designers who would benefit from the proposed legislation.

The bill has a long way to go before it will become law. It is now awaiting consideration by the House Judiciary Committee, which must approve it before the House of Representatives can vote on it. Once approved, the bill must also be approved by the Senate and then signed by the president. The majority of bills never make it out of committee.