Copyright Office Doesn’t Want to Make Fashion Judgments
Copyright Office Doesn’t Want to Make Fashion Judgments
Copyright Office Doesn’t Want to Make Fashion Judgments

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    The Copyright Office wants to abdicate any responsibility for determining that a fashion design is sufficiently original to receive protection, and wants fashion designers to litigate instead. The Copyright Office requested an amendment that is included in the legislation that would

    [clarify] that the Office does not make judgments as to whether a particular design is sufficiently original or distinctive to qualify for protection…

    The Copyright Office has refrained from “taking a position on the overall merits” of H.R. 5055, the bill that would extend 3 year copyright protection for fashion designs. Representatives from the Copyright Office did not attend last Thursday's fashion hearing, but the Copyright Office did provide a statement. It's worth a read for a Cliff's Notes versions of why fashion has never received copyright protection in the US and the history of the Vessel Hull Design Protection Act that fashion design protection would be tacked on to.

    The Copyright Office's justification for the amendment regarding determinations of originality:

    Whether a design of a vessel hull meets these statutory requirements is more appropriately determined by a court of law, in an adversary proceeding in which evidence is presented (including the possibility of expert testimony) that permits a more informed determination on these matters.

    As we've discussed previously, there is little, if any, originality in fashion design, so the chances that a design does not meet the statutory requirements of originality are great. You can't really blame the Copyright Office for not wanting to determine the originality of a design – fashion designers take so much from fashion history and inspiration from each other that its virtually impossible to determine originality, so why should we expect the Copyright Office to be able to trace every registration application for a dress or jacket or shoes through the history of fashion and determine that its been done before?

    H.R. 5055 will put the power to control fashion design, and thus the industry, in the hands of the few wealthy designers who can afford the high costs of litigation. Forcing fashion designers to litigate originality is going to be a slow and costly process, which will decrease competition in the fashion industry as the newest and least known fashion designers will be put out of business by the expense. Designers will either be forced to litigate to prove that a registered design is in the public domain, or will be forced to defend their own designs as not infringing on the registered designs of another. Even if a designer could afford the legal bills, the lifespan of the litigation would outlast the attention span of the fashion industry, so that by the time a resolution is achieved there would be a determination on the rights to use an out-of-style design – hardly a victory and hardly worth the expense.