This morning brought news that the Senate Judiciary Committee unanimously passed the "Innovative Design Protection and Piracy Prevention Act," a bill introduced three months ago by New York Senator Charles E. Schumer to provide “very limited intellectual property protection to the most original design,” WWD is reporting. If all goes well, and the bill passes the Senate and the House and becomes a law, designers will, for the first time, be able to file for copyright protection for their patterns and designs. As it stands now, copyright statute only offers protection for trademarks (like Chanel)--which can include specific prints--but not for actual cut-and-sewn patterns. When we asked Susan Scafidi, intellectual property attorney and director of Fordham's Fashion Law Institute, to break down the implications of the bill should it pass into law she told us it could: a) protect a new design for three years after it’s been put into production, b) spur creativity in mass retail, and c) stop designers–peers–from knocking each other off. Of course, that's a very big "if."
It's clear from our Adventures in Copyright series (especially the Marc by Marc near exact replica we posted yesterday) that designers have little protection when it comes to their designs. For American designers to protect their patterns, they must attain "trade dress" protection, which means consumers recognize a knockoff as coming from a particular designer like say, a wrap dress from DVF. This is pretty hard to prove and designers rarely win these cases. It's a frustrating position for American designers to have little recourse when their designs are copied down to the most subtle details but a new bill gives designers some hope. Late last night, the New York Times broke the news that New York Senator Charles E. Schumer introduced a bill called the Innovative Design Protection and Piracy Prevention Act which would provide "very limited intellectual property protection to the most original design." So if Marc Jacobs wanted to sue whomever knocked off his bag, he'd have to prove that that his design is a "unique, distinguishable, non-trivial and non-utilitarian variation over prior designs," and that the knock off is "substantially identical" to the original.