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IDPPPA: The Copyright Compromise

By Biana Borukhovich, EASL Fashion Law Committee Member

Is the third try a charm? That is what Senator Schumer and the fashion industry are pondering. As some of you may know, Representative Robert W. Goodlatte and other representatives, such as Hillary Clinton, introduced the Design Piracy Prohibition Act (DPPA) into Congress, twice. This bill was designed to Amend Title 17 of the Copyright Act to offer copyright protection to fashion designers. Nevertheless, this bill has been pending in the Senate since August 2, 2007.

However, a new name and a few additional provisions have offered new hope for these representatives. On August 6, 2010, Senator Schumer introduced the Innovative Design Protection and Piracy Prevention Act (IDPPPA), which can be found at http://thomas.loc.gov/cgi-bin/query/z?c111:S.3728. This bill was introduced to offer similar protection to fashion designers for their original creations. Both the DPPA and IDPPPA offer copyright protection to designers for 3 years for their original designs, but not for articles in the public domain. Moreover, neither bill speaks to fashion designers' liability for "independent creations" of similar designs.

Conversely, the IDPPPA has offered a few new set-asides from the DPPA. Under the new bill, fashion designers do not have a registration period during which they must apply for copyright protection. In addition, the new bill provides that a claimant can only plead the facts with particularity, which is a heightened standard compared to that of the DPPA. Under this standard, the complainant must meet three elements: (1) the design must be original, (2) the defendant's design is substantially identical and (3) the defendant had the opportunity to have seen the design before it was released publicly. Hence, such a standard would deter fraudulent and futile lawsuits that the previous bill might have encouraged.

In my opinion, this new bill seems more practicable at this point in time. Although I am all for the passage of the DPPA, at the same time, in an economy such as the one the U.S. is struggling with right now, we must take precaution in passing bills that might affect the job market. Hence, I think that the IDPPPA offers equilibrium between the designers and the "secondary" designers, a.k.a copycats, because it offers protection for fashion designers without offering over breadth provisions that would cause chaos in the fashion industry and unnecessary litigation. What do you think?

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This page contains a single entry from the blog posted on September 9, 2010 11:40 AM.

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