Aficionados of glossy high-fashion magazines know that for every page of trend-setting design there is an affordable counterpart at the local department store. Expensive couture designs are routinely copied so that inexpensive knockoffs with mid- to low-range price tags can be delivered to the budget-conscious fashionista. This practice has been largely tolerated by the fashion industry as clothing designs, and to some extent accessories, enjoy limited copyright protection under the Copyright Act. A bill pending before Congress could, however, fundamentally alter the legal landscape of the fashion industry by granting full copyright protection to fashion and clothing design.

In a new anti-copying campaign led by the Council of Fashion Designers of America, top designers such as Zac Posen, Narcisco Rodriguez and Diane Von Furstenberg are lobbying Congress to grant fashion designs protection under the Copyright Act. The proposed Design Piracy Prohibition Act introduced by Representative Bob Goodlatte, R-Va., last spring, proposes a limited three-year term for fashion designs that commences upon whichever is earlier: the date of publication of the registration or the date the design is first made public. See H.R. 5055. Under the act, the term “fashion design” is defined broadly to include everything from articles of clothing to footwear, headgear, handbags, belts and eyeglass frames. What is unusual about this bill is that it goes against a long line of copyright jurisprudence denying copyright protection to fashion designs because of their inherent utilitarian quality.

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