Should Congress Enact Copyright Protection for Fashion Design?

By Corey Field

From bikinis to bodices, togas to trench coats, the United States Congress is deciding whether or not to pass a new law that would provide, for the first time, copyright protection for fashion design. Included in the new bill would be any article of men's, women's or children's clothing, including undergarments, outerwear and accessories.

Reportedly the result of lobbying efforts by the Council of Fashion Designers of America, the new bill, H.R. 5055, was introduced on March 30, 2006 in the House of Representatives. Though a long way from becoming law, H.R. 5055 is a bill that the direct response industry needs to be aware of. Fashion is a $20 billion-per-year business, and a profitable part of our industry. But under this new bill, competing designers and the direct response retailers that sell their lines, could find themselves accused of copyright infringement.

Although some European countries provide legal protections for fashion design, this would be something entirely new for the fashion industry in the United States. The role of U.S. copyright law is currently limited to protection of things such as fabric patterns that rise to the level of artistic design, drawings or photographs printed on cloth, jewelry designs, and even eyeglass frames and belt buckles that are virtually "works of art" and original sculptures in their own right. But the basic and universal design elements of clothing as seen in typical or even unusually styled dresses, shirts, pants, boots, etc., belong to us all and cannot be individually copyrighted and owned.

DESIGNED TO KNOCKOFF?
In support of the proposed legislation, the fashion industry points to the unique value of American design, the need to encourage home-grown young design talent and the damage that is done by "knockoff" designs.

Opponents of the bill who testified before Congress point out that the fashion industry in America has thrived because of, and not in spite of, a lack of copyright protection for fashion designs: "Fashion designers draw on a wide array of influences from society, history and one another, making it virtually impossible to determine the originality of a given design."

Proponents of the bill believe that copyright protection would be sought only by haute couture designers for their top of the line, highly imaginative runway designs. But there is nothing in the bill to stop virtually any designer from attempting to obtain a copyright that could block a competitor, and via a lawsuit, injunction or settlement shut down all sales of allegedly infringing items even at the largest retailers and direct response television companies.

Ultimately, the decisions in regards to what is original in fashion would no longer be made by consumers flocking to designs they love, but would be made by juries, and by the legal system: the federal judges presiding over copyright litigation. You choose: little black dress, or long black judicial robes--which is the correct measure of fashion design originality?

Corey Field is a member of the Intellectual Property Group at Ballard Spahr Andrews & Ingersoll LLP in Philadelphia. He can be reached at fieldc@ballardspahr.com.