Legally Speaking

With trade dress suits springing up like May flowers, which seems to be the most promising way for designers to protect their recognizable creations, it feels like a good time for some legal speak. Some people may not know that currently, a bill sits with Congress that would extend copyright (different from trademark law, of which trade dress is a subset) to the fashion industry. The bill is H.R. 2196, The Design Piracy Prohibition Act (for you law nerds like me, here is the text of the bill as introduced before Congress.) As of June 12, 2009, the Bill was referred to the House Subcommittee on Crime, Terrorism and Homeland Security where it currently remains.

In a nutshell, the bill would create a species of copyright law applicable to the fashion industry. The protection would require designers to register their original designs within 6 months of introduction to the public (what constitutes 'introduction to the public’ promises to spur its own series of litigation) and limits protection to 3 years from date of registration.

While this would protect designers from having their creations copied and the resulting loss of sales or brand integrity, it also risks having an anti-competitive effect. Copyright law in its conception was designed to promote innovation by offering incentives to those who create. It could be argued that protecting designs under this bill will hinder the free competition in the industry, in terms of resources and price. Some critics of the bill argue that, since the fashion industry is thriving (aside from the economic tsunami currently ravaging the business), there is no need to raise protective force fields around creative designs. I think the limited 3 year scope of protection will not seriously encumber any competition, as might be the case if the time period was as long as that of regular copyright (which is currently the life of the author plus 70 years, after the Copyright Term Extension Act of 1998 was passed). I'm all for knocking off copy cats with the same force that they knock off originals. What comes of this bill is matter of being patient (just like trying to find a job!)


Happy birthday Mom! You don't look a day of 35 (thanks in part to my style mentoring).