She recently graced us with her piece on the Christian Louboutin trademark case, and now lawyer Catlan McCurdy shares her insight with us on the Innovative Design Protection and Piracy Prevention Act (“IDPPPA”), which affects whether you can (and should) have a knock off of that famous McQueen wedding dress for Kate Middleton.
[Above, my favorite latest designer ripoff – the Kate Middleton wedding dress. A cheaper version of the Alexander McQueen designer’s, Sara Burton, vision, so now every bride can feel like a princess… (photo credit to Mirror.co.uk)]
With New York Fashion Week nearing its end, and the whirl of Forever 21’s sewing machines beginning to hum, I couldn’t help but think about where on earth that little piece of legislation called the Innovative Design Protection and Piracy Prevention Act (“IDPPPA”) had wandered off to now. Answer: not very far.
Let me take a step back. The IDPPPA aka The Fashion Bill was reintroduced into Congress in July of this year, but legislation attempting to protect fashion designs has been around since at least 2006, when H.R. 5055 was introduced. The IDPPPA, if passed, would amend the Copyright Act to create special protection for fashion designs, but not full-on-all-the-way copyright protection (currently, copyright protection extends for the life of the author plus 70 years). Instead, the IDPPPA would provide for a three-year term of protection for original elements or arrangements of fashion designs. Those elements must be a result of the designer’s “own creative endeavors” and “provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs.” We’re talking about real innovation here, like the chain inside the hem Chanel suits (to ensure that the jacket hung properly from your shoulders), the Diane Von Furstenberg wrap dress (copied by millions now, but this dress was invented by DVF in the 1970s), or the ever iconic Burberry trench coat.
The IDPPPA includes three exceptions to infringement, but my favorite is the “Home Sewing Exception.” Under this exception, if a fashion design is produced as a single copy “for personal use or for the use of an immediate family member, if that copy is not offered for sale or use in trade” during the three-year protection period, then there is no infringement. You want to figure out how to hand-sew your own leather messenger bag instead of buying the knockoff at Target, go for it. That’s not infringement.
A previous Senate version in 2010, under the same name, was approved by the Senate Committee on the Judiciary for the bill to proceed to the Senate floor, but it did not pass the floor. The most recent House bill IDPPPA was referred to the Subcommittee on Intellectual Property, Competition and the Internet on August 25, 2011. It might even be possible for this to be passed in time for the next fashion week in February, giving designers, especially small ones like Proenza Schouler, a fighting chance against blatant copy-cats.