This year has been marked by significant judicial and legislative developments relating to the fashion industry in the United States.
Innovative Design Protection Act (IDPA)
In September, the Senate Judiciary Committee approved the Innovative Design Protection Act (IDPA), which would extend copyright protection to articles of apparel that “(i) are the result of a designer’s own creative endeavor; and (ii) provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.” S. 3523, 112th Cong. § 2 (2012). The IDPA protects the artistic elements of a design expressed as a whole, including its ornamentation. Thus, for example, neither pockets on a pair of trousers nor the collar on a button down shirt would be eligible for protection under the IDPA, since pockets and collars are mere components of a larger design. Conversely, a more original and less clearly functional garment, such as an intricately and uniquely detailed jacket with pointy shoulders, might be protected under the proposed IDPA.
The term of protection would last for three years, in contrast with the life plus seventy year term of a typical copyright by an individual author. Additionally, the IDPA would require a design owner to provide written notice to an accused infringer twenty-one days prior to instituting an action.
Copyright Protection in the Courts
The IDPA is, in part, a response to the limited fashion design protection afforded under the Unites States Copyright Act (the “Act”). Fashion designs arguably fall under 17 U.S.C. § 102(a)(5) of the Act as “pictorial, graphic, and sculptural works.” However, because such works are often considered useful or utilitarian articles, they are only copyrightable as pictorial, graphic, or sculptural works if their features “can be identified separately from and are capable of existing independently of, the utilitarian aspects of the design.” 17 U.S.C. § 101.
Thus, e.g., on October 15, 2012, the Second Circuit in Jovani Fashion, Ltd. v. Fiesta Fashions, No. 12-598-cv (S.D.N.Y. Oct. 15, 2012), decided that a design for a sequined prom dress was not copyrightable. The court stated, “[c]lothing, in addition to covering the body, serves a ‘decorative function,’ so that the decorative elements of clothing are generally ‘intrinsic’ to the overall function, rather than...
