New Bill to Protect Fashion Design

Here is the text of S. 1957, a bill that proposes to modify the Copyright Code to allow more protection for fashion design. The bill is sponsored by Charles Schumer, NY Senator, and co-sponsored by junior NY Senator Hillary Clinton.

Contra, see this article by Kal Raustiala and Christopher Sprigman. Also contra, here.

To amend title 17, United States Code, to provide protection for fashion design.

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SECTION 1. SHORT TITLE.

This Act may be cited as the `Design Piracy Prohibition Act'.

SEC. 2. PROTECTION FOR FASHION DESIGN.

(a) Designs Protected- Section 1301 of title 17, United States Code, is amended--

(1) in subsection (a), by adding at the end the following:

`(3) FASHION DESIGN- A fashion design is subject to protection under this chapter.'; and

(2) in subsection (b)--

(A) in paragraph (2), by inserting `or an article of apparel,' after `plug or mold,'; and

(B) by adding at the end the following:

`(7) A `fashion design' is the appearance as a whole of an article of apparel, including its ornamentation.

`(8) The term `design' includes fashion design, except to the extent expressly limited to the design of a vessel.

`(9) The term `apparel' means A) an article of men's, women's, or children's clothing, including undergarments, outerwear, gloves, footwear, and headgear;`(B) handbags, purses, and tote bags;

`(C) belts; and

`(D) eyeglass frames.'.(b) Designs Not Subject to Protection- Section 1302 of title 17, United States Code, is amended in paragraph (5)--

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`(B) in the case of a fashion design, embodied in a useful article that was made public by the designer or owner in the United States or a foreign country more than 3 months before the date of the application for registration under this chapter.'.

(c) Term of Protection- Section 1305(a) of title 17, United States Code, is amended to read as follows:

`(a) In General- Subject to subsection (b), the protection provided under this chapter--

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`(2) for a fashion design shall continue for a term of 3 years beginning on the date of the commencement of protection under section 1304.'.

(d) Infringement- Section 1309 of title 17, United States Code, is amended--

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(C) by adding after the third sentence the following: `In the case of a fashion design, a design shall not be deemed to have been copied from a protected design if it is original and not closely and substantially similar in overall visual appearance to a protected design.';

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How will the bill overcome the "usefulness" bump?

What is a useful article according to the US Copyright Law?

In 1990, in Masquerade Novelty Inc. v. Unique Industries , the District Court had held that masks designed to resemble noses of an animal are unprotectible, but the 3rd Circuit reversed.

In Whimsicality, Inc. v. Rubie’s Costume Co.,1989, the 2nd Circuit rejected the plaintiffs characterization of Halloween costumes as “soft sculptures”, finding them to be uncopyrightable clothing.

The Copyright Office Policy Decision on registrability of Costume Designs is as follow:masks are registrable, but costumes are useful articles, and will be registered only upon a finding of separable artistic authorship. It is because masks have no other function than portraying their appearance, whereas costumes may also be worn for warmth or modesty, even though it is generally not their purpose. But the Copyright Act defines a “useful article” as one having “an intrinsic utilitarian function.”