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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. Two bills that were introduced in the 110th Congress, H.R. 2033 and S.
1957 (the Design Piracy Prohibition Act), would have amended Chapter 13 of the U.S. Copyright
Act, which currently provides protection for designs of vessel hulls. Both bills would have
granted fashion designs a three-year term of protection, based on registration with the U.S.
Copyright Office.
This report analyzes the amendments that the Design Piracy Prohibition Act would have made to
Chapter 13 of the Copyright Act. It also summarizes arguments both in favor of and against
extending copyright protection to fashion designs. This report will be updated if similar
legislation is introduced in the 111th Congress.
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Introduction ..................................................................................................................................... 1
Background ..................................................................................................................................... 1
Analysis of H.R. 2033 and S. 1957, 110th Congress........................................................................ 3
Designs Protected...................................................................................................................... 3
Term of Protection..................................................................................................................... 3
Application for Registration...................................................................................................... 4
Infringement.............................................................................................................................. 4
The Protection Debate ..................................................................................................................... 5

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Author Contact Information ............................................................................................................ 6

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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. However,
Chapter 13 of the U.S. Copyright Act does specify protection for the designs of one category of
useful articles, the designs of boat hulls. H.R. 2033,1 the Design Piracy Prohibition Act, was
introduced in the 110th Congress by Representative Delahunt on April 25, 2007. A substantially
similar bill, S. 1957, was introduced by Senator Schumer on August 2, 2007.2 The bills would
have amended Chapter 13 of the Copyright Act to extend design protection to fashion design. As
of the date of this report, no similar legislation has been introduced in the 111th Congress.
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The Copyright Act (the 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 eligible
for copyright protection under § 102 of the Act,5 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 protecting the designs of useful articles, as courts have excluded
most industrial designs from copyright protection.7

1 An identical bill, H.R. 5055, was introduced in the 109th Congress by Rep. Goodlatte. The House Subcommittee on
Courts, the Internet, and Intellectual Property held hearings on the bill on July 27, 2006.
2 As introduced, both bills are identical in structure and text, with the exception of § 2(d).
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 footnote 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)).
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Both the patent and trademark law regimes provide limited means for protecting fashion design.8
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.9 Under patent law, design patents could also be a potential means for
protection.10 However, commentators have noted the potential shortcomings of each of these
approaches.11
The design protection for vessel hulls and decks12 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 or deck designs for a period of 10 years;13 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.14 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.”15
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.”16 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.

8 For more information, see CRS Report RL34559, Intellectual Property in Industrial Designs: Issues in Innovation
and Competition, by John R. Thomas.
9 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).
10 See 35 U.S.C. § 171.
11 Hearings, supra footnote 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).
12 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 exterior frame or body of a vessel, exclusive of the deck, superstructure, masts, sails,
yards, rigging, hardware, fixtures, and other attachments.” A “deck” is “the horizontal surface of a vessel that covers
the hull, including exterior cabin and cockpit surfaces, and exclusive of masts, sails, yards, rigging, hardware, fixtures,
and other attachments.” 17 U.S.C. § 1301, as amended by the Vessel Hull Design Protection Amendments of 2008,
P.L. 110-434.
13 Id. § 1305(a).
14 Id. § 1310(a).
15 Id. § 1310(b).
16 Id.
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As discussed above, Chapter 13 of the Copyright Act, entitled “Protection of Original Designs,”
is currently limited to vessel hull designs.17 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.18 The definition subsection of § 1301
first explains what makes a design original,19 and then limits the definition of “useful article” to a
vessel hull.20 H.R. 2033 and S. 1957 would have amended the definition of “useful article” by
adding the provision “or an article of apparel,” in order to protect clothing under the Act.21 To the
end of the definition section, both bills would have added the definitions for “fashion design,”22
“design,”23 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.
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Both bills would have amended the Copyright Act to prescribe a three-year term of protection for
fashion designs.24 The Act currently specifies a 10-year term of protection for vessel hulls.25
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.26 Because
trends arise and fade quickly, the shorter term is considered a sufficient time period for the
designer to have exclusive rights.27 The 10-year protection for vessel hulls would have remained
unchanged under the bills.

17 Id. § 1301.
18 Id. § 1301(a)(1).
19 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.”).
20 Id. § 1301(b)(2).
21 H.R. 2033, S. 1957, 110th Cong., 1st Sess., at § 2(a)(2)(A) (2007). A hearing on H.R. 2033 and related matters was
held on Feb. 14, 2008, Design Law: Are Special Provisions Needed to Protect Unique Industries?: Hearing Before the
House Subcomm. on Courts, the Internet, and Intellectual Property, 110th Cong., 2nd Sess. (2008).
22 H.R. 2033, S. 1957, at § 2(a)(2)(B) (“A ‘fashion design’ is the appearance as a whole of an article of apparel,
including its ornamentation.”).
23 Id. (“The term ‘design’ includes fashion design, except to the extent expressly limited to the design of a vessel.”).
24 Id. at § 2(c), amending 17 U.S.C. § 1305(a).
25 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)).
26 Hearings, supra footnote 4 (statement of the U.S. Copyright Office).
27 Hearings, supra footnote 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).
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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.28 The section
refers only to registration for vessel hull design protection. H.R. 2033 and S. 1957 would have
added to this section a window of three months for registration of a fashion design after it has
been made public.29 The purpose of including a limited registration period “is to require prompt
registration of protected designs, which gives notice to the world that design protection is
claimed.”30 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.31 The two-
year time frame for vessel hull registration would have remained unchanged under the bills.
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Section 1309 of the Copyright Act details what constitutes infringement of the design of a useful
article.32 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.33 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.34 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.35
H.R. 2033 and S. 1957 would have narrowed 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.36 Additionally, the bills would have added 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.”37 Both
bills would also have amended § 1309 to apply the doctrines of secondary liability to actions for
infringement of a design of a useful article.38 Doing so would codify the doctrines of secondary

28 17 U.S.C. §§ 1310(a-b).
29 H.R. 2033, S. 1957, at § 2(e)(1).
30 Hearings, supra footnote 4 (statement of the U.S. Copyright Office).
31 Hearings, supra footnote 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”).
32 17 U.S.C. § 1309.
33 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).
34 Id. § 1309(b)(2).
35 Id. § 1309(c).
36 H.R. 2033, S. 1957, at § 2(d)(1).
37 H.R. 2033 at § 2(d)(2); S. 1957 at § 2(d)(2)(A).
38 H.R. 2033, S. 1957, at § 2(d)(3). These doctrines include contributory, vicarious, and induced infringement.
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liability, which are not presently in the Copyright Act but exist in case law.39 Finally, the bills
would have changed recovery for infringement from the current amounts of $50,000 or $1 per
copy, to $250,000 or $5 per copy.40
As noted earlier, S. 1957 and H.R. 2033 are substantially similar in structure and text; they differ
only in one respect: S. 1957 would have amended the definition of “infringing article,” provided
by 17 U.S.C. § 1309(e), to exclude a fashion design that “is original and not closely and
substantially similar in overall visual appearance to a protected design.”41 H.R. 2033 does not
contain a similar amendment. The original text of § 1309(e) reads: “A design shall not be deemed
to have been copied from a protected design if it is original and not substantially similar in
appearance to a protected design.” It is unclear what legal effect the inclusion of the words
“closely” and “overall visual” would have on the law.
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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.42 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.43 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.44 Supporters of the legislation also point to the protection
granted to fashion design in other areas of the world.45
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.46 They claim that such interference into the fashion market would be harmful because of
increased litigation over the standard for infringement.47 As a result, creative production of

39 See, e.g., Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).
40 17 U.S.C. § 1323(a); H.R. 2033, S. 1957, 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.
41 S. 1957, at § 2(d)(2)(C).
42 Hearings, supra footnote 4 (statement of Susan Scafidi, Associate Professor of Law, Southern Methodist University)
(arguing that “designers are engaged in the creation of original works”).
43 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”).
44 Id. (stating that younger designers “cannot simply rely on reputation or trademark protection to make up for the
absence of copyright”).
45 Id. (noting that France has strong copyright protection for fashion design).
46 See, e.g., Hearings, supra footnote 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.”).
47 Hearings, supra footnote 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
(continued...)
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fashion designs would be stifled, ultimately resulting in less choice for consumers.48 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.49

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Brian T. Yeh

Legislative Attorney
byeh@crs.loc.gov, 7-5182

(...continued)
and likely to consume substantial judicial resources”).
48 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 footnote 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).
49 Hearings, supra footnote 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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