For artists and creative professionals, copyrights are invaluable tools. Copyrights protect original intellectual works — like songs, literature, drama or art — from unauthorized use or reproduction. If a copyright is infringed, the holder can sue for damages. Copyright protection is automatic and starts at the time the work is created.
Not every creative work qualifies for copyright protection, however. Fashion designers, for example, aren’t allowed to copyright their clothing designs. If another designer likes what someone else has done, he or she is free to copy it and incorporate it into his or her own work without giving credit to the original designer.
This exemption has long bothered many fashion designers, who claim that their work deserves the same protection as that of writers, musicians, filmmakers and other creative professionals. These designers may have found a friend in New York Senator Chuck Schumer, who recently introduced legislation that would extend copyright laws to include protection for clothing designs.
The bill — called the Innovative Design Protection Act — was passed by the Senate Judiciary Committee in September 2012. It provides three years of copyright protection for unique creative fashion designs, including clothing, undergarments, shoes, hats, bags and eyeglass frames. Designs that are merely a trivial or utilitarian change from previous designs would not be protected.
The bill would allow fashion copyright holders to take action only if someone else produced a “substantially identical” design that could easily be mistaken for the copyrighted design. Copyright holders who suspect a violation would be expected to give notice and give the suspected infringer 21 days to remedy the situation. If the infringer does not remedy the violation, the copyright holder would be able to pursue compensation for damages that accrue after the notice of violation was given.
Are copyright protections needed?
Not everyone is sold on the need for copyright protection in the fashion world. Critics of the legislation don’t see a major problem in the fashion industry, and they note that American fashion has thrived over the past decades in spite of designers’ lack of copyright protection. They worry that the bill could lead to disarray and costly litigation.
To supporters, though, the opportunity for litigation is exactly what is being sought. The bill’s proponents say they are tired of watching their work be duplicated. They say fashion designers are only asking for the same protections that are already available to creative professionals in other industries.
It is still too early to tell if the bill will pass — similar versions of the law have been introduced dating back to 2006 and have not made substantial progress. The House version of Sen. Schumer’s current bill had not advanced from committee as of mid-December 2012.
Fashion designers and other creative professionals whose works are misused by others would be wise to seek the assistance of an experienced business law attorney. Even if copyright protection does not apply, the attorney may be able to help determine other ways to protect the work.