JMBM IP Update: Copyright Protection Sought for Haute Couture Fashion Apparel

Clothing manufacturers have long taken note of fashion trends, deciding what current and upcoming designer fashions they’ll recreate and sell to the public at a fraction of the designers’ price.

In response, and at the behest of a handful of haute couture designers, the Council of Fashion Designers of America (CFDA) has mobilized and is now advocating legislation that would give designers copyright protection similar to that offered to artists, writers and musicians.

Under the proposal, designers would be able to register their fashion designs with the U.S. Copyright Office. Registrations would protect the overall appearance of a garment for three years, making it illegal for anyone to manufacture and/or sell strikingly similar goods.

Not covered under the copyright would be designs created before the passage of the law, as well as t-shirts and jeans. Under the proposed law, copyright infringement would carry statutory damages of up to $250,000 per instance of infringement.

The CFDA represents more than 270 designers and has stated that the legislation is a response to outright knockoffs, such as those of couture dresses worn by starlets at awards ceremonies. According to the CFDA, a large number of companies in the apparel industry exist to “hijack” the designs of American designers’ red-carpet garments. By making knockoffs in foreign factories, manufacturers can get their version in stores in a matter of days, even before the designer who actually created the garment. The CFDA hopes to curtail this practice through the proposed copyright legislation.

However, if passed, the Bill could have a wider effect, imperiling the availability of the less expensive, chic clothing inspired by high fashion that has long been available at mass-market retailers. Because copyright law prohibits substantially similar articles, not merely outright copies, opponents of the CFDA-backed legislation argue that copyright protection contradicts the creative process on which the industry relies. After innovating for decades and decades without special copyright protection, opponents say that the fashion industry has not made a case for implementing such protections now. In an industry based on whims and fickleness, they believe that copyrights have no place.

For more information, contact Rod Berman at 310.201.3517 or RBerman@jmbm.com.