It seems like every year Senator Charles Schumer tries to push through another bill (some might say the same bill) to extend copyright protection to fashion design, and this year is no exception. Last week Senator Schumer introduced S.3728 — the Innovative Design Protection and Piracy Prevention Act — seeking once again to give purveyors of handbags, cloche hats, and haute couture the right to sue knock-off artists in federal court. The bill has — at best — mixed support, and given that a designer must show “a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs” to merit copyright protection, the burden of proof is painfully high. Add to that the fact that any alleged copying must be “substantially identical” and we have a bill that seems ripe for manipulation by the marketplace. While you may get the counterfeiters (who are already subject to criminal prosecution for passing off their wares), the copycats still have a vast array of cloth, c0lors and designs at their disposal with which to make almost-but-not-quite-identical copies of Chanel hats and Louis Vuitton purses. If the bill passes, I foresee decades of muddled, not particularly compelling rulings on what constitutes a “unique” design for simple items of clothing such as the ubiquitous, all-American tee.
Perhaps the tee shirt depicted here will be deemed sufficiently unambiguous from an artistic standpoint to qualify for protection. If not, the artist can rest easy knowing that although his efforts to protect the design of his humble tee failed, he at least added a soupçon of cognitive dissonance to the world. Which we can never have too much of.
[Shake your head back and forth if you agree].
I am a commercial litigator and intellectual property lawyer in Orange County. Although my practice encompasses a wide variety of business disputes, I have a particular fondness for, and am prone to wax philosophical on, the subjects of copyright and trademark infringement in music, literature, art, and film.