Under U.S. Copyright law, copyright protection generally does not extend to fashion designs, such as the dimensions, style, cut or shape of a fashion item like clothing.  However, original patterns or images that are imprinted or stitched on fabric are protected by copyright.  A recent bill has been introduced in the House of Representatives that would change this statutory framework. The bill, H.R. 5055, aims to modify the U.S. Copyright Act to cover fashion designs.  If implemented, H.R. 5055 would extend copyright protection to clothing (including undergarments, outerwear, gloves, footwear, and headgear); handbags, purses, and tote bags; belts; and eyeglass frames.  Protection would extend to the appearance of the article of apparel as a whole, including any ornamental elements of the article.

The protection would be a short — a period of three (3) years, which could not be renewed.  The rationale for this shorter period is that market demand and prices for a design are highest during the design’s initial period on the market.  Unlike most other protectable works, registration would be mandatory.  The time frame to apply for a registration would likewise be short — filing an application is required within three months of the design being made public.  A design would be "made public" when it is offered for individual or public sale.  Thus, showing a design to potential buyers at fashion shows would, presumably, trigger the date, as well as a more private showing to a single buyer.

After registration of the design, the copyright owner would have the exclusive right to "make, have made, or import, for sale or for use in trade, any useful article embodying that design; and (ii) sell or distribute for sale or for use in trade any useful article embodying that design."  The owner would have the right to prevent any other person from infringing on those rights and to seek remedies for such infringing acts.  H.R. 5055 would extend "acts of infringement" to both primary and secondary liability, including for instance, acts of contributory infringement, vicarious liability, and inducement of infringement.  However, H.R. 5055 would also provide a possible "out" to alleged infringers.  An act would not be considered infringing if the alleged infringer did not have "reasonable grounds to know that protection for the design is claimed."  Copyright owners could address this by, perhaps, consistently adding copyright notices to the hang tags or point of sale materials with specific reference to the design as being protected by copyright. Cease and desist letters to unauthorized users might also be helpful, at least with respect to unauthorized uses occurring after the demand letter is received.

H.R. 5055 provides for certain remedies, including statutory damages, the infringer’s profits from the infringing sales, attorneys’ fees, compelled destruction of the infringing articles, and equitable relief like injunctions.  Statutory damages would include "damages adequate to compensate for the infringement."  Such damages could be increased up to the greater of $250,000 or $5 per each unauthorized copy of the design.

The fashion and apparel industry should pay close attention to the progress of this bill.  This bill would make it easier to protect intellectual property in designs, which is now very hard under existing laws.  On the other hand, the bill may substantially curtail the ability of designers to emulate the designs of others.  This proposed legislation could affect the way the industry does business.  For instance, internal systems to apply for and monitor copyright registrations of new designs would be needed to take advantage of the legislation’s benefits.  Careful copyright clearance screenings of new designs would be needed to reduce the risks of suit.

It is not certain that H.R. 5055 will be enacted, as the proposed legislation has a long road ahead and significant hurdles to overcome.  Industry analysts and experts on both sides debated the underlying merits of the legislation at a July 27, 2006 House subcommittee hearing.  Further, the Copyright Office stated that proponents of the legislation have not yet provided sufficient evidence that fashion design legislation is warranted.  In a recent meeting with copyright attorneys to discuss recent developments in the Copyright Office, Register Marybeth Peters did not even mention H.R. 5055 in her speech.  It is certainly possible that the bill may die in committee, only to resurface again in some other form in the future, just as it has done on other occasions.  Those in the fashion industry should keep a close eye on this legislation.