Design Piracy Prohibition Act
Encyclopedia
The Design Piracy Prohibition Act, , , and , were bills of the same name introduced in the United States Congress
that would have amended Title 17 of the United States Code
to provide sui generis protection to fashion designs
for a period of three years. The Acts would have extend protection to "the appearance as a whole of an article of apparel, including its ornamentation," with "apparel" defined to include "men's, women's, or children's clothing, including undergarments, outerwear, gloves, footwear, and headgear;" "handbags, purses, and tote bags;" belts, and eyeglass frames. In order to receive the three-year term of protection, the designer would be required to register
with the U.S. Copyright Office within three months of going public with the design.
with fourteen co-sponsors. On May 4, 2007 the U.S. House Committee on the Judiciary referred the Bill to the U.S. House Subcomittee on Courts, the Internet, and Intellectual Property
. A hearing was held February 14, 2008, but the bill never made it out of the subcommittee.
by Senator Charles Schumer
(D-NY) with ten co-sponsors. The bill was referred to the Senate Committee on the Judiciary but progressed no further.
to the extent that its shape is non-utilitarian enough to qualify as a creative "sculpture," or to the extent that a design, pattern, or image on the clothing qualifies as "pictorial" or "graphic." While current laws against counterfeit goods do provide some protection for designers, this is so only when the trademark is used and not when merely the design is copied under a different label. In addition, fashion may be protected by design patents if the requirements for patentability are met. To be patentable an ornamental design must be new, original and non-obvious. The United States Patent and Trademark Office website (www.uspto.gov) has a searchable database of patents, and includes patents on apparel in class D2, carrying articles in class D3, and eyeglass frames in class D16. Technological advances to the means of textile and garment production, as well as increases in the number of distribution channels and the availability of cheap labor in emerging economies have enabled those who would copy these designs to do so quickly and inexpensively. Legislation targeting design piracy has already been enacted in Europe
, India
, and Japan
.
-Va.
), with six co-sponsors from both parties. The bill was referred by the U.S. House Committee on the Judiciary to the U.S. House Subcomittee on Courts, the Internet, and Intellectual Property
.
The subcommittee held a hearing on the bill on July 27, 2006, at which there was disagreement among legal experts as well as representatives of the fashion industry as to whether there was a need for copyright protection. Proponents of the Act claimed that new technology threatened American designers' ability to compete with the products of lower-cost countries, because the distribution of images of new designs and the automation of copying and manufacturing could occur within hours. They additionally pointed out that the United States was the exception among western nations in failing to protect designs.
(AAFA) which previously opposed the fashion design bills.
Under the IDPPPA, a copy of a design would have infringed if it was found to be "substantially identical" to the original work with little to no changes to set that design apart. Penalties for false representation would have been increased from $500 to $5,000 and from $1,000 to $10,000. "Apparel" items that would be protected by this Act include women's, men's, and children's clothing as well as luggage, handbags, wallets and eyeglass frames. A "fashion design" under the IDPPPA would be defined as an entire article of apparel including its embellishment and also includes elements of the original apparel that are the creative work of the original designer and are unique.
As this Act would create more protection for fashion designers, it received substantial press coverage. Designers supported the IDPPPA for protecting their current and future fashion designs. For example, Kurt Courtney of the AAFA has praised the bill as a "great compromise and a product of hard work," but added that its effects will largely be seen in court cases involving the bill.
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
that would have amended Title 17 of the United States Code
Title 17 of the United States Code
Title 17 of the United States Code is the title of the United States Code that outlines United States copyright law.—Subject Matter and Scope of Copyright—Copyright Ownership and Transfer—Duration of Copyright—Copyright Notice, Deposit, and Registration—Copyright Infringement and...
to provide sui generis protection to fashion designs
Fashion design
Fashion design is the art of the application of design and aesthetics or natural beauty to clothing and accessories. Fashion design is influenced by cultural and social latitudes, and has varied over time and place. Fashion designers work in a number of ways in designing clothing and accessories....
for a period of three years. The Acts would have extend protection to "the appearance as a whole of an article of apparel, including its ornamentation," with "apparel" defined to include "men's, women's, or children's clothing, including undergarments, outerwear, gloves, footwear, and headgear;" "handbags, purses, and tote bags;" belts, and eyeglass frames. In order to receive the three-year term of protection, the designer would be required to register
Copyright registration
The purpose of copyright registration is to place on record a verifiable account of the date and content of the work in question, so that in the event of a legal claim, or case of infringement or plagiarism, the copyright owner can produce a copy of the work from an official government...
with the U.S. Copyright Office within three months of going public with the design.
H.R. 2033, 110th Congress
H.R. 2033 was introduced April 25, 2007 by Representative Bill DelahuntBill Delahunt
William D. Delahunt is a former U.S. Representative for , serving from 1997 to 2011. He is a member of the Democratic Party. Delahunt did not seek re-election in 2010, and left Congress in January 2011. He was replaced by Norfolk County District Attorney Bill Keating...
with fourteen co-sponsors. On May 4, 2007 the U.S. House Committee on the Judiciary referred the Bill to the U.S. House Subcomittee on Courts, the Internet, and Intellectual Property
United States House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property
United States House Judiciary Subcommittee on Courts, and Competition Policy and Administrative Law is a subcommittee within the House committee on the Judiciary.-Members, 112th Congress:- External links :*...
. A hearing was held February 14, 2008, but the bill never made it out of the subcommittee.
S. 1957, 110th Congress
S. 1957 was introduced on August 2, 2007, in Washington, D.C.Washington, D.C.
Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
by Senator Charles Schumer
Charles Schumer
Charles Ellis "Chuck" Schumer is the senior United States Senator from New York and a member of the Democratic Party. First elected in 1998, he defeated three-term Republican incumbent Al D'Amato by a margin of 55%–44%. He was easily re-elected in 2004 by a margin of 71%–24% and in 2010 by a...
(D-NY) with ten co-sponsors. The bill was referred to the Senate Committee on the Judiciary but progressed no further.
H.R. 2196, 111th Congress
H.R. 2196 was introduced on April 30, 2009, by Representative Delahunt and twenty-three co-sponsors. The bill was referred to the House Committee on the Judiciary on the same day and then stalled in committee.Current Status of Fashion Design Protection
Currently, fashion may only be protected by copyrightCopyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
to the extent that its shape is non-utilitarian enough to qualify as a creative "sculpture," or to the extent that a design, pattern, or image on the clothing qualifies as "pictorial" or "graphic." While current laws against counterfeit goods do provide some protection for designers, this is so only when the trademark is used and not when merely the design is copied under a different label. In addition, fashion may be protected by design patents if the requirements for patentability are met. To be patentable an ornamental design must be new, original and non-obvious. The United States Patent and Trademark Office website (www.uspto.gov) has a searchable database of patents, and includes patents on apparel in class D2, carrying articles in class D3, and eyeglass frames in class D16. Technological advances to the means of textile and garment production, as well as increases in the number of distribution channels and the availability of cheap labor in emerging economies have enabled those who would copy these designs to do so quickly and inexpensively. Legislation targeting design piracy has already been enacted in Europe
Europe
Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...
, India
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
, and Japan
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
.
Criticism
Critics claim that, contrary to the bill's claims, the bill will actually harm independent fashion designers. The majority of independent designers do not have the litigation funds to effectively challenge big business should they be accused of copyright infringement. Furthermore, because distributors of accused designs can be penalized as well as the designer, distributors of clothing will become very wary of new designs unless the designer has adequate funds, influence, and power to hire skilled and effective lawyers. Pattern companies frequently utilize prevailing trends; so they too are vulnerable. Because of the legal risks of producing fashion patterns, less people will sew their own clothing, and fabric and sewing stores will suffer losses as well. As evidence of the bill's hypocrisy, critics point to how one of the most vocal supporters of the bill, Diane Von Furstenburg, was recently caught copying and distributing a piece of clothing originally designed by an independent Canadian designer. Critics also argue that the industry is already thriving commercially and encourages innovation. They point attention to the concept that originality in fashion design is too insubstantial for copyright law to distinguish protected elements from non-protected elements, and that extending copyright protection would stifle independent designers while giving powerful, big-business fashion houses a near-monopoly.H.R. 5055, 109th Congress: To Amend Title 17, United States Code, to Provide Protection for Fashion Design
H.R. 5055 was introduced March 30, 2006 by Representative Robert W. Goodlatte (RRepublican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
-Va.
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
), with six co-sponsors from both parties. The bill was referred by the U.S. House Committee on the Judiciary to the U.S. House Subcomittee on Courts, the Internet, and Intellectual Property
United States House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property
United States House Judiciary Subcommittee on Courts, and Competition Policy and Administrative Law is a subcommittee within the House committee on the Judiciary.-Members, 112th Congress:- External links :*...
.
The subcommittee held a hearing on the bill on July 27, 2006, at which there was disagreement among legal experts as well as representatives of the fashion industry as to whether there was a need for copyright protection. Proponents of the Act claimed that new technology threatened American designers' ability to compete with the products of lower-cost countries, because the distribution of images of new designs and the automation of copying and manufacturing could occur within hours. They additionally pointed out that the United States was the exception among western nations in failing to protect designs.
S. 3728, 111th Congress: Innovative Design Protection and Piracy Prevention Act
S.3728 was introduced on August 5, 2010, by Senator Chuck Schumer with ten co-sponsors. On December 1, 2010, the Senate Committee on the Judiciary voted unanimously for the bill to proceed to the Senate floor. This is the furthest that any of the design bills has progressed since 2006. The bill garnered support from the American Apparel and Footwear AssociationAmerican Apparel and Footwear Association
The American Apparel and Footwear Association is an American industry trade group representing hundreds of apparel, footwear, and sewn products companies and their suppliers. The AAFA was formed in August 2000 through the merger of the American Apparel Manufacturers Association and Footwear...
(AAFA) which previously opposed the fashion design bills.
Under the IDPPPA, a copy of a design would have infringed if it was found to be "substantially identical" to the original work with little to no changes to set that design apart. Penalties for false representation would have been increased from $500 to $5,000 and from $1,000 to $10,000. "Apparel" items that would be protected by this Act include women's, men's, and children's clothing as well as luggage, handbags, wallets and eyeglass frames. A "fashion design" under the IDPPPA would be defined as an entire article of apparel including its embellishment and also includes elements of the original apparel that are the creative work of the original designer and are unique.
As this Act would create more protection for fashion designers, it received substantial press coverage. Designers supported the IDPPPA for protecting their current and future fashion designs. For example, Kurt Courtney of the AAFA has praised the bill as a "great compromise and a product of hard work," but added that its effects will largely be seen in court cases involving the bill.
See also
- Sara R. Ellis, Copyrighting Couture: An Examination of Fashion Design Protection and Why the DPPA and IDPPPA are a Step Towards the Solution to Counterfeit Chic, 78 Tenn. L. Rev. 163 (2010), available at http://ssrn.com/abstract=1735745.
- Witnesses Clash on Need for Granting Copyright Protection to Fashion Designs, Anandashankar Mazumdar. BNABureau of National AffairsThe Bureau of National Affairs, Inc. — known as BNA — is an independent, privately owned publisher of specialized online and print news and information for professionals in business and government, headquartered in Arlington, Virginia, USA...
's Patent, Trademark & Copyright Journal, August 4, 2006. - Intellectual property legislation pending in the United States Congress
- THOMASTHOMASTHOMAS is the database of United States Congress legislative information. It is operated by the Library of Congress and was launched in January 1995 at the inception of the 104th Congress...
External links
- Full text of Design Piracy Prohibition Act, H.R. 5055
- Bc.edu
- Uspto.gov: Index to the United States Patent Classification (USPC) System
- Uspto.gov: Guide to Filing a Design Patent Application
- Will the Fashion Copyright Bill Stifle Innovation?