Order Code RS22685
June 28, 2007
Copyright Protection for Fashion Design: A
Legal Analysis of the Design Piracy
Prohibition Act, H.R. 2033
Jessica G. Jacobs
Law Clerk
American Law Division
Summary
Fashion design does not currently receive explicit protection under U.S. copyright
law. Limited avenues for protection of certain types of apparel designs can be found
through trademark and patent law, though proponents of copyright protection for fashion
design argue that these limited means are insufficient. H.R. 2033, the “Design Piracy
Prohibition Act,” would amend Chapter 13 of the U.S. Copyright Act, which currently
provides protection for designs of vessel hulls. The bill would grant fashion designs a
three-year term of protection, based on registration with the U.S. Copyright Office.
This report analyzes the amendments that H.R. 2033 would make to Chapter 13 of
the Copyright Act. It also summarizes arguments both in favor of and against extending
copyright protection to fashion designs.1
Introduction
H.R. 2033,2 the Design Piracy Prohibition Act, was introduced by Representative
William D. Delahunt, for himself and Representatives Goodlatte, Maloney, and Bono, on
April 25, 2007. The bill would amend Chapter 13 of the U.S. Copyright Act (the Act) to
provide copyright protection for fashion design. U.S. copyright law does not protect
useful articles, and copyright protection has been denied to fashion designs because
clothing garments have traditionally been viewed as useful articles — basic items of
necessity having utilitarian value — rather than as artistic creations. The Act does specify
protection for the designs of one category of useful articles, the designs of vessel hulls.
H.R. 2033 would amend the Act to add protection for fashion designs as well, for a term
1 This report was prepared under the general supervision of Brian T. Yeh, Legislative Attorney.
2 H.R. 2033, 110th Cong., 1st Sess. (2007). An identical bill, H.R. 5055, was introduced in the
109th Congress by Rep. Robert W. Goodlatte, for himself and for Rep. Delahunt, Rep. Coble, and
Rep. Wexler. The House Subcommittee on Courts, the Internet, and Intellectual Property held
hearings on the bill on July 27, 2006.

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of three years, provided that registration is filed with the U.S. Copyright Office within
three months from the time that the design is first made public.
Background
The Copyright Act defines a “useful article” as “an article having an intrinsic
utilitarian function that is not merely to portray the appearance of the article or to convey
information.”3 If the function of an article is found to be inherently utilitarian, rather than
exclusively aesthetic or informational, then the article cannot be protected under U.S.
copyright law. Although useful articles cannot be protected in and of themselves, certain
aesthetic or creative aspects of such articles can receive protection. Designs of useful
articles can be protected under copyright law “only if, and only to the extent that, such
design incorporates pictorial, graphic, or sculptural features that can be identified
separately from, and are capable of existing independently of, the utilitarian aspects of the
article.”4 Because “pictorial, graphic, and sculptural” works are expressly eligible for
copyright protection under § 102 of the Act,5 copyright protection is permitted for aspects
of a utilitarian article that fall into this category and can be physically or conceptually
separable from the utilitarian aspects of the article.6 The U.S. Copyright Office describes
this “separability test” as an “extremely limited” means of protection for the designs of
useful articles, as courts have excluded most industrial designs from copyright protection.7
The avenues for protection of fashion design available through the patent and
trademark law regimes are narrow. Under the concept of trade dress, part of trademark
law, a fashion design can be protected in cases where the product has gained a reputation
among consumers as being identifiable with a particular market source.8 Under patent
3 17 U.S.C. § 101.
4 A Bill to Provide Protection for Fashion Design: Hearings Before the House Subcomm. on
Courts, the Internet, and Intellectual Property, 109th Cong., 2nd sess. (2006) [hereinafter
Hearings] (statement of the U.S. Copyright Office) (citing 17 U.S.C. § 101).
5 17 U.S.C. § 102(a)(5).
6 See Chosun, Int’l, Inc. v. Chrisha Creations, Ltd., 413 F.3d 324 (2d Cir. 2005) (holding that it
is at least possible that elements of plush sculpted animal Halloween costumes are separable from
the overall design of the costume and therefore eligible for copyright protection).
7 Hearings, supra note 4 (statement of the U.S. Copyright Office) (citing Brandir Int’l, Inc. v.
Cascade Pacific Lumber Co., 834 F.2d 1142 (2d Cir. 1987) (holding that a bicycle rack derived
from wire sculptures was a product of industrial design and therefore not protectable, because
its “[f]orm and function are inextricably intertwined”); Norris Indus. v. International Tel. and Tel.
Corp., 696 F.2d 918 (11th Cir. 1983) (holding that wire-spoked wheel covers for automobiles
were not copyrightable because they are useful articles without separable features)).
8 See Samara Bros. v. Wal-Mart Stores, 529 U.S. 205 (2000) (holding that a product design,
specifically that for children’s clothing, could be protected under federal trademark law if it were
found to have acquired recognition among consumers as being associated with a particular
source).

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law, design patents could also be a potential means for protection.9 However,
commentators have noted the potential shortcomings of each of these approaches.10
The design protection for vessel hulls11 in the Copyright Act is a unique, specially
carved-out area of protection for designs of useful articles. Chapter 13 of the Act
provides protection for vessel hull designs for a period of 10 years;12 such protection is
granted if the application for registration of the design is made within two years from the
date on which the design is first made public.13 A design is considered to have been made
public “when an existing useful article embodying the design is anywhere publicly
exhibited, publicly distributed, or offered for sale or sold to the public by the owner of the
design or with the owner’s consent.”14
Section 1308 of the Act describes the exclusive rights of design owners under
Chapter 13. The owner of a protected design “has the exclusive right to (1) make, have
made, or import, for sale or for use in trade, any useful article embodying that design; and
(2) sell or distribute for sale or for use in trade any useful article embodying that design.”15
If the design protection under Chapter 13 were expanded to include fashion designs,
fashion design owners would be granted the exclusive right to place their designs on the
marketplace, and to thereby prevent others from copying a design and disseminating it
without authorization.
Analysis of H.R. 2033
Designs Protected. As discussed above, Chapter 13 of the Copyright Act,
entitled “Protection of Original Designs,” is currently limited to vessel hull designs.16
Section 1301 of the Act grants protection to the designer or other owner of an original
design of a “useful article” that makes the article’s appearance attractive or distinctive to
the buying public.17 The definition subsection of § 1301 first explains what makes a
9 See 35 U.S.C. § 171.
10 Hearings, supra note 4 (statement of the U.S. Copyright Office) (noting that “design patents
are difficult and expensive to obtain, and entail a lengthy examination process,” and that
trademark law only protects those product configurations that identify the source of the product,
while the other aspects are not protected, and any trademark protection is only against uses of the
design that create at least a substantial likelihood of customer confusion).
11 A “vessel” is defined as “a craft that is designed and capable of independently steering a course
on or through water through its own means of propulsion; and that is designed and capable of
carrying and transporting one or more passengers.” A “hull” is “the frame or body of a vessel,
including the deck of a vessel, exclusive of masts, sails, yards, and rigging.” 17 U.S.C. § 1301.
12 Id. § 1305(a).
13 Id. § 1310(a).
14 Id. § 1310(b).
15 Id.
16 Id. § 1301.
17 Id. § 1301(a)(1).

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design original,18 and then limits the definition of “useful article” to a vessel hull.19 H.R.
2033 would amend the definition of “useful article” by adding the provision “or an article
of apparel,” in order to protect clothing under the Act.20 To the end of the definition
section, H.R. 2033 would add the definitions for “fashion design,”21 “design,”22 and
“apparel.” The definition of apparel is broad, encompassing articles of men’s, women’s,
and children’s clothing, including undergarments, and outerwear, gloves, footwear, and
headgear. Additionally, the term covers handbags, purses, tote bags, belts, and eyeglass
frames, rendering these items eligible for protection.
Term of Protection. H.R. 2033 would amend the Copyright Act to prescribe a
three-year term of protection for fashion designs.23 The Act currently specifies a 10-year
term of protection for vessel hulls.24 Proponents of the legislation assert that a three-year
term is sufficient because its purpose is to protect high end “haute couture” designs when
they are first sold at expensive prices — a time when the designs could be vulnerable to
copies sold at substantially lower prices.25 Because trends arise and fade quickly, the
shorter term is considered a sufficient time period for the designer to have exclusive
rights.26 The 10-year protection for vessel hulls would remain unchanged under the bill.
Application for Registration. Section 1310 of the Copyright Act mandates a
two-year time period after a design has been made public during which an application for
registration of the design must be filed.27 The section refers only to registration for vessel
hull design protection. H.R. 2033 would add to this section a window of three months for
registration of a fashion design after it has been made public.28 The purpose of including
a limited registration period “is to require prompt registration of protected designs, which
18 Id. § 1301(b)(1) (“A design is ‘original’ if it is the result of the designer’s creative endeavor
that provides a distinguishable variation over prior work pertaining to similar articles which is
more than merely trivial and has not been copied from another source.”).
19 Id. § 1301(b)(2).
20 H.R. 2033, 110th Cong., 1st Sess. § 2(a)(2)(A) (2007).
21 Id. at § 2(a)(2)(B) (“A ‘fashion design’ is the appearance as a whole of an article of apparel,
including its ornamentation.”).
22 Id. (“The term ‘design’ includes fashion design, except to the extent expressly limited to the
design of a vessel.”).
23 Id. at § 2(c), amending 17 U.S.C. § 1305(a).
24 17 U.S.C. § 1305(a) (The term of protection under copyright law generally, other than for
vessel hulls, is the life of the author plus seventy years. Id. § 302(a)).
25 Hearings, supra note 4 (statement of the U.S. Copyright Office).
26 Hearings, supra note 4 (statement of the U.S. Copyright Office) (applauding the proponents
of the legislation for seeking a modest term of protection that is appropriate for the nature of
fashion design).
27 17 U.S.C. §§ 1310(a-b).
28 H.R. 2033, at § 2(e)(1).

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gives notice to the world that design protection is claimed.”29 Because the entire term of
protection for fashion designs is significantly shorter than that for vessel hulls, a shorter
window for registration of fashion designs is necessary.30 The two-year time frame for
vessel hull registration would remain unchanged under the bill.
Infringement. Section 1309 of the Copyright Act details what constitutes
infringement of the design of a useful article.31 In addition to a violation of any of the
design owner’s exclusive rights under § 1308, discussed above, it is also an infringement
for a seller or distributor who did not make or import an infringing article, to induce or
act in collusion to make or import the article.32 A seller or distributor can also be liable
if a design owner asks where the article came from and the seller/distributor refuses or
fails to do disclose its source, and orders or reorders the article with the infringing design
after being notified by mail that the design is protected.33 Section 1309 has a narrow
exception to infringement liability for acts without knowledge: it is not an infringement
to make, have made, import, sell, or distribute any article embodying a copied design that
was created without knowledge that the design was protected.34
H.R. 2033 would narrow this exception by amending the language so that it would
constitute infringement if one did not have actual knowledge but had reasonable grounds
to know that design protection is claimed.35 Additionally, the bill would add protection
for images of fashion designs as well as for the designs themselves, stipulating that an
article is infringing if its design was copied from a protected design “or from an image
thereof.”36 The bill would also amend § 1309 to apply the doctrines of secondary liability
to actions for infringement of a design of a useful article.37 Doing so would codify the
doctrines of secondary liability, which are not presently found in the Copyright Act, but
which exist in case law.38 Finally, the bill would change recovery for infringement from
the current amounts of $50,000 or $1 per copy, to $250,000 or $5 per copy.39
29 Hearings, supra note 4 (statement of the U.S. Copyright Office).
30 Hearings, supra note 4 (statement of the U.S. Copyright Office) (describing that “a 2-year
window [as vessel hulls receive] to register a fashion design that is entitled to protection for only
3 years and that likely is already starting to go ‘out of fashion’ after 2 years would make
registration a relatively meaningless formality”).
31 17 U.S.C. § 1309.
32 Id. § 1309(b)(1) (explaining that purchasing or giving an order to purchase an infringing article
in the ordinary course of business does not of itself constitute inducement or collusion).
33 Id. § 1309(b)(2).
34 Id. § 1309(c).
35 H.R. 2033, 110th Cong., 1st Sess. § 2(d)(1) (2007).
36 Id. at § 2(d)(2).
37 Id. at § 2(d)(3). These doctrines include contributory, vicarious, and induced infringement.
38 See, e.g., Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).
39 17 U.S.C. § 1323(a); H.R. 2033, at § 2(g). These values are higher than the maximum statutory
damages for copyright infringement, which are between $750 and $30,000 per work and up to
$150,000 for willful infringement. 17 U.S.C. § 504.

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The Protection Debate
Law professors, government officials, and design industry professionals have
expressed diverse viewpoints on the need for and desirability of legislation granting
copyright protection to fashion design. Those in favor of protection assert that the
copyright law mistakenly views clothing as purely utilitarian in nature, and ignores the
possibility that fashion design may be a form of creative expression deserving of
protection.40 Proponents also highlight the effects of modern technology on the ease and
speed of copying fashion designs, pointing to the ability for copiers to easily access
images of runway photos posted on the Internet.41 Additionally, emphasis is placed on
the particular vulnerability of young designers whose names and logos are not yet
recognizable in the marketplace, and have difficulty promoting their work when it is
quickly copied by established competitors.42 Supporters of the legislation also point to
the protection granted to fashion design in other areas of the world.43
Those against offering copyright protection for fashion design generally point to the
success of the marketplace as it is and note that copying is an integral and accepted part
of the fashion industry.44 They claim that such interference into the fashion market would
be harmful because of increased litigation over the standard for infringement.45 As a
result, creative production of fashion designs would be stifled, ultimately resulting in less
choice for consumers.46 Finally, these critics assert that foreign experience with fashion
design protection has not had material effect because copying still occurs in nations that
have design protection laws — to the same degree it occurs in the U.S. where there is
currently no such protection.47
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40 Hearings, supra note 4 (statement of Susan Scafidi, Associate Professor of Law, Southern
Methodist University) (arguing that “designers are engaged in the creation of original works”).
41 Id. (asserting that “high quality digital photos of a runway look can be uploaded to the Internet
and sent to copyists anywhere in the world even before the show is finished”).
42 Id. (stating that younger designers “cannot simply rely on reputation or trademark protection
to make up for the absence of copyright”).
43 Id. (noting that France has strong copyright protection for fashion design).
44 See, e.g., Hearings, supra note 4 (statement of David Wolfe, Creative Director, Doneger
Creative Services) (“The absence of copyright in fashion frees designers to incorporate popular
and reemerging styles into their own lines without restricting themselves for fear of infringement,
thus facilitating the growth of new trends.”).
45 Hearings, supra note 4 (statement of Christopher Sprigman, Associate Professor, University
of Virginia School of Law) (noting that “[d]rawing the line between inspiration and copying in
the area of clothing is very, very difficult and likely to consume substantial judicial resources”).
46 Id. (“It is hard to imagine an industry [with design protection] producing the same rich variety
of new designs that today’s healthy, competitive fashion industry yields.”). But see Hearings,
supra note 4 (statement of Susan Scafidi) (describing the recent trend of high-end designers
designing mass-market clothing lines for stores such as Target and Wal-Mart, reducing the need
for consumers to rely on low-priced knock-offs).
47 Hearings, supra note 4 (statement of Christopher Sprigman) (asserting that the European Union
still faces substantial design copying despite offering substantial protection for apparel designs).

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