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Copyright to Expand Scope to Fashion Design and Apparel

On Behalf of | Dec 22, 2010 | Trademarks


Will fashion designers have an extra reason to celebrate this holiday season? If Senator Chuck Schumer (D-NY) has his way, big retailers like Nike and local boutiques like Makool or Snap might find a nicely wrapped legislative package in their stockings this year.

Sen. Schumer is the sponsor of Senate bill S.3728, which was unanimously approved by the Senate judicial committee on December 6. (Schumer introduced an earlier version that died in committee – I wrote a longish article which discussed that bill in 2008). If the bill becomes law, it would immediately extend limited copyright protection to some clothing, footwear, and accessories (apparel and accessories have traditionally been excluded from copyright protection because they are considered “useful articles,” which are not covered by existing copyright law). Proponents of S.3728 hope that the new law would put an end to the cheap knock-offs that plague designers of high-fashion clothing and accessories.

The new bill would reverse decades of common law and Copyright Office policy by explicitly adding “fashion design” and “apparel” to the categories of creative work that are subject to copyright. In order to receive protection, items would need to contain original elements or an original arrangement of elements that provide a “unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.” Protection would attach automatically at the time of first public appearance, and would last for three years from that date. Note that this protection is a significantly shorter duration than for other categories of copyright (for new works created today, copyright lasts for the life of the author + 70 yrs for an individual creator, or 100 years after creation for a work created by a company). For small designers, it’s probably most significant that new bill does not require a designer to register her design to receive protection, and because there is a clear fair-use exemption spelled out for non-commercial copying.

(Read one critics’ take on the proposed amendment).

This year’s bill has passed out of the senate judiciary committee, but it still requires a vote in the house and the full senate before it could become law. And with time running out on this lame duck session of Congress, (only fourteen days left before the new Congress is seated, and two of those days are Christmas and New Years Day!) it seems like this bill might suffer the same fate as its predecessor. But this final session of Congress has already delivered a few surprises, including this week’s unlikely approval of the START treaty and last week’s elimination of Don’t Ask, Don’t Tell- and if it doesn’t make it through this Congress, designers should expect that a very similar bill will come back again next year.


Guest blogger Steve Glista’s practice is focused on helping clients understand the risks — and rewards — that come with doing business on the internet.  He’s also representing defendants and John Doe targets in the current series of online file sharing lawsuits.

Prior to law school, Steve worked in biotech, finance, and professional services for several large companies in the SF Bay area.  Steve earned his JD from the University of Oregon and his bachelor’s in biology from the California Institute of Technology.

More from Steve on the Slinde Nelson blog in the coming weeks.