Copyright Subject Matter and a "Light" for Designers' Rights

By Mancinella, Matteo | Santa Clara Computer & High Technology Law Journal, March 2013 | Go to article overview

Copyright Subject Matter and a "Light" for Designers' Rights


Mancinella, Matteo, Santa Clara Computer & High Technology Law Journal


Table of Contents  I.   INTRODUCTION  II.  Non-Protectable Categories of Works of      Authorship under Copyright Law       A. The Genesis of the Idea/Expression Dichotomy and         Judge Hand's Abstraction Test       B. The Functionality Exception in Copyright Law and a         Brief Analysis of Some Recent Cases          1. What Does Copyright Mean for Functionality          2. Software Functionality: Oracle v. Google and the            European Court of Justice Decision in SAS v.            World Programming Limited          3. Useful Articles: The Distinction Between            Separability and Functionality  III. Is a New Era for Designers Starting? The E.U.      Design Regulation and the American Fashion      Design Bill       A. The E.u. Community Design Regulation: A Breath of         Fresh Air for European Design       B. The Innovative Design Protection Act of 2012: Is it         Really What Designers Need?       C. What Opponents Think about the Fashion Design         Bill? A Comparison with the E.U. Design Regulation  IV. Conclusion 

I. Introduction

As of 2012, American intellectual property law provides insufficient protection for fashion design. (1) A fashion designer can register a trademark for his or her label and obtain all the advantages that this registration provides, (2) in addition to the trademark rights that come with the mark's use in commerce. (3) Intellectual property rights can also provide a protection for fashion designers through design patent, but the application process is costly and requires a lot of time. (4) Fashion designs change with every season, and thus designers cannot wait more than a few months to obtain protection for the next season's designs. But is there any protection for a garment under copyright law? Has Congress ever considered the possibility of offering protection for designs of useful articles?

In 1998 Congress, conscious of the boat manufacturers' concerns regarding illegal copying of boat hull designs, (5) enacted the Vessel Hull Design Protection Act (VHDPA). (6) The provisions of this Act do not provide copyright protection but instead represent a sui generis protection only to original vessel hull designs. Specifically, the provisions guarantee ten years of protection (7) for only the aspects of a boat design that make it original and ornamental, (8) and give the registrant the exclusive right to "make, have made, or import, for sale or for use in trade, any useful article embodying that design ... and ... sell or distribute for sale or for use in trade any useful article embodying that design." (9) Similar to design patents, protection is not afforded to design features that are functional or utilitarian. (10)

After years of discussion, and increased litigation due to the copying of clothing by "fast fashion" houses, Congress discussed the possibility of extending protection under Chapter 13 of the Copyright Act of 1976 to fashion design. (11) Although Chapter 13 offers protection only for designs of vessel hulls, the Fashion Design Bill, (12) if enacted, would extend that protection to fashion designs as well, with some exceptions: for example, while the term of protection for vessel hull design is ten years, (13) the term for fashion design will be only three years. (14) Given brevity of fashion design cycles, this shorter term is considered sufficient to guarantee a designer exclusivity in his or her designs.

So why not provide copyright protection for fashion designs? This article argues in favor of such protection. This article will first discuss the doctrines of copyright law that render fashion design unprotectable, and then argue how fashion design can nevertheless receive protection. This article will then discuss the European approach to protection for fashion design, and finally discuss the Fashion Design Bill that is currently moving through Congress.

II. Non-Protectable Categories of Works of Authorship under Copyright Law

A.

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