Feb
19
Scope of the Design Piracy Prohibition Act (S. 1957 H.R. 2033)
Posted by Keeley Vega at 12:28 pm under Copyright, Patent.
Yesterday Dirk wrote about the testimony of Narcisco Rodriquez in support of the Design Piracy Prohibition Act.
Steve Maiman, co-owner of Stony Apparel Corp. testified on behalf of those in the industry who oppose the bill. Specifically, he argued that it is “impossible to determine the originality of a design because all designs are inspired by existing designs and trends.”
For me, whether Mr. Maiman’s concern is legitimate turns on the scope of protection granted. Section 2(a)(7) of the Act reads: ”A `fashion design’ is the appearance as a whole of an article of apparel, including its ornamentation.” If this means that copyright protects a babydoll dress with three-quarter length sleeves, the exclusive rights would encompass a dangerously broad range of designs. This would be similar to a utility patent with the scope of the claim defined by the specification including a range of different embodiments. If, on the other hand, copyright protects a fashion design to the same extent as a design patent, the exclusive rights would only extend to the precise disclosed embodiment.
Using this standard, the following suspect designs can’t be merely inspired by the original because the arrangement and expression of the design are identical.
(Left: Marc Jacobs, Right: Forever 21, via Fashionista)
(Left: Gucci, Right: Olavera at Nine West, via Fashionista)
This all makes me wonder why we’re not looking to design patents for protection of fashion design. Many authors suggest that this is impossible or useless (arguments found here, here, here, and here), but a quick patent search reveals 3290 garment patents, 490 handbag patents, 338 purse patents, and 2407 footwear patents. Clearly someone finds value in design patents for fashion design– what gives?
FROM YOUR ARTICLE:
“This all makes me wonder why we’re not looking to design patents for protection of fashion design. Many authors suggest that this is impossible or useless (arguments found here, here, here, and here), but a quick patent search reveals 3290 garment patents, 490 handbag patents, 338 purse patents, and 2407 footwear patents. Clearly someone finds value in design patents for fashion design– what gives?”
CAN YOU IMAGINE THE NUMBER OF PATENTS AND COPYRIGHTS THAT WILL FLOOD THE GOVERNMENT IF THIS BILL PASSES? HOW WILL IT POSSIBLE BE MANAGED? WHAT WILL BE THE COST TO THE AMERICAN TAXPAYER?
Flood? Yes. Flood the government? I’m not sure what you mean (unless you mean add to the growing backlog). Of course such applications would bring in money too.
As it is written, I agree that it opens the gates for way too much, especially items that would cross the “originality” line, at least for me. But maybe very narrow protection, in place of the current proposal, would be appropriate?