By  on December 1, 2010

WASHINGTON — Legislation that would protect fashion designers and apparel brands from knockoffs moved a step closer to reality on Wednesday after the Senate Judiciary Committee unanimously passed a bill that would provide three years of copyright protection for “unique and original designs.”

The bill, known as the Innovative Design Protection and Piracy Prevention Act, will expand copyright laws for the first time to include fashion designs that are often the target of knockoff artists who replicate and profit off of another designer’s creation.

The specter of fashion design piracy has haunted the fashion industry for decades but finding definitions for terms such as “piracy,” “knockoffs” and “original” designs has proven elusive. High-profile designers, including Narciso Rodriguez, Diane von Furstenberg, Nicole Miller and Jason Wu have lobbied for the legislation and many made the trek to Capitol Hill to persuade lawmakers to take a look at the legislation and provide some help to thwart the knockoff of their designs.

The bipartisan legislation, led by Sen. Charles Schumer (D., N.Y.), will now advance to the full Senate for a vote but it is unclear whether there is enough time on the calendar for its passage before Congress adjourns for the year. The industry’s main fashion and apparel groups plan to keep up the pressure for Congress to act in the waning days of the congressional session.

While the bill has run into opposition through the legislative process, the two major fashion groups leading the effort — the American Apparel & Footwear Association and Council of Fashion Designers of America — forged a compromise in August, clearing the path for its advancement.

A similar bill in the House currently contains provisions different from those in the Senate bill but industry officials and legislative aides said the House co-sponsors are poised to take up the Senate bill if it passes. A spokeswoman for Rep. Bob Goodlatte (R., Va.), a co-sponsor of the House bill, said the co-sponsors are waiting to see a final Senate bill before considering action.

“It is somewhat of a historic fashion moment to a big extent,” said Steven Kolb, executive director of the CFDA. “It is important because people have been watching this for awhile…so to not get it done [in Congress] continues to give those who are taking the liberty on others’ intellectual property the opportunity to keep doing that. We need to shut it down.”

Kurt Courtney, manager of government relations at the AAFA, said, “The industry will finally have the ability to protect the truly original, artistic pieces of fashion that presently do not have any protection. This bill does a great job of drawing the line between what is useful and artistic. For those who do truly original art in fashion, they will have an opportunity to gain protection.”

The bill still faces opposition from the California Fashion Association.

If passed, the legislation would extend copyright protection to “unique and original” designs for a period of three years. The bill covers only “deliberate copies that are substantially identical to the protected designs.” All designs created in the public domain prior to enactment of the bill would be exempt, and protection extends automatically to designs without registration. A “heightened pleading standard” requires a plaintiff in a lawsuit to prove the design is “protectable, substantially identical” and that the defendant had access to, or was aware of, the “protected design.”

“When a designer invests in intellectually creative and financial capital and they come up with something truly unique, they should be entitled to protection against knockoff artists who want to steal their ideas and benefit from the hard work,” said Schumer. “We think it [the legislation] strikes the right balance between providing narrow protection for the truly unique and original fashion designs while deterring and preventing frivolous lawsuits.”

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