The Innovative Design Protection Act (IDPA) introduced by Senator Charles E. Schumer in September 2012 was recently passed in Congress, with the purpose of extending copyright protection to fashion designs. Under the bill, articles of apparel such as clothing, handbags, purses, wallets, tote bags, belts and eyeglass frames constitute “useful articles”.
The protection afforded by the IDPA is based not on the previous standard of “substantially similar” but instead, that of “substantially identical”: “So similar in appearance as to be likely to be mistaken for the design, and contain only those differences in construction or design which are merely trivial.” This narrowing of standards takes into account the often inherently derivative quality of fashion design. Also, to be more applicable to the fast-paced, ephemeral nature of the fashion industry, copyright protection for original articles is valid for a three-year term, but is not applied to articles made public more than three years before the date of asserting protection.
Other provisions include barring the consideration of “the presence or absence of a particular color, or pictorial or graphic work imprinted on fabric” in determining copyright protection. The act “modifies infringement criteria for retailers, sellers, importers, or distributors of an infringing article who did not make the article”, and also holds that “it is not infringement to make, have made, import, sell, offer for sale, or distribute any article embodying a design which was created without knowledge, either actual or reasonably inferred from the totality of the circumstances, that a design was protected and was copied from such protected design”. Furthermore, a fashion design is not deemed to be copied if it is not “substantially identical” to a protected design, or if it is “the result of independent creation”.
When owners of a fashion design want to sue for copyright infringement, the IDPA specifies that the owner must provide written notice of the design protection to the supposed infringer. The owner may pursue an action for infringement after the design is made public and after 21 days following the provision of the aforementioned written notice.
For fashion designers, the IDPA might prove to be a significant amendment to the way the legal system treats creative work that fuels the fashion business. Enforceable intellectual property rights in the form of copyrights of fashion designs could conceivably protect the value of artistic fashion articles, and increase the supply and demand of more original designs from the retail to the haute couture level.
If you have an extravagant, extraordinary or exclusive product or service in need of legal protection, contact Luxury Law Firm.
AMD IDPA Summary