Inspiration or Theft?

Posted on September 15, 2010

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For many years, most artists, from musicians to authors, have been able to copyright their work. The same has not been true for fashion designers because U.S. copyright law said that clothing is a useful article and, as such, is not legally protected.  Anyone who has walked the busy city streets of New York or San Francisco is quite familiar with the visible presence of a knock-off industry.

The question of copyrights for fashion designers has been plagued by a multitude of issues ranging from what constitutes a true copy of an original design to the basic fact that fashion copyrights could harm the American consumer. After all, how many people can truly afford a $5,000 gown when a near-copy can be found at the local department store?

On August 5, Senator Charles E. Schumer (D., N.Y.) has introduced a bill entitled S.3728: the Innovative Design Protection and Piracy Protection Act that seems to satisfy designers without creating a law so stringent that most fashion trends will become unavailable to the masses. The bill prohibits only designs that are substantially identical.

According to The New York Times, Schumer’s bill puts the burden of copyright on the garment or accessory’s creator. “A designer who claims that his work has been copied must show that his design provides ‘a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs.’”  Factors that can’t be used in determining the uniqueness of a design are color, patterns and a graphic element.  Also according to The Times, “the bar is extremely high to determine what qualifies as a unique and distinguishable fashion design,” and Sen. Schumer’s hope remains that “the law itself is a powerful deterrent.”

According to the Wall Street Journal, the fashion copyright will primarily boil down to the “squint test.” “If you need to squint to see the difference between two designs, then one is an infringing copy of the other.” However, designers will also remain free to be inspired and influences by the works of others in their field. “Designers would be left free to riff on – but not rip off – each other’s work.”

Technically speaking, Sen. Schumer’s copyright bill will protect unique fashion creations for three years from the time of their public debut. So far, his legislation has gained support from the fashion industry, and many outsiders agree that this bill could help both designer and consumer.  After all, the copies make versions of designs available to consumers that they might never be able to afford them otherwise.

However, others claim it is only to protect profits, not innovation or the consumer.  These opponents worry that other innovations will be stanched.  Additionally, they mention the possibility that judges would interpret the bill too expansively without fully understanding the ramifications.

We will keep you posted as to further developments with this legislation.

Elizabeth Ritter
Ritter Law Firm, LLC

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