Newsletter Issue 38 - April 2012

In this issue:

Copyright Still Isn't Fashionable!

A recent question posed to us by a law student in Rotterdam, Netherlands (yes, you read correctly) about the status of copyright protection for fashion designs in the United States motivated us to revisit a previous article we wrote in 2009 about proposed copyright legislation referred to then as the Design Piracy Prohibition Act (H.R. 2196). That bill was introduced in April 2009 by William (Bill) Delahunt, U.S. Representative, Massachusetts 10th District.

You may recall that clothing falls into the category of a functional item, which is not protectable under United States copyright law. This is distinguishable from fabric designs, which may receive copyright protection. We noted in our article that limited protection for fashion designs may be afforded by trademark (trade dress) and patent (design patents) law; however, these have not been practical alternatives for the fashion industry.

H.R. 2196 died in committee and, just like other attempts at creating copyright protection for fashion designs, never became law. In July 2011, Congress made yet another attempt to protect fashion designs, this time in the name of the "Innovative Design Protection and Piracy Act" (H.R. 2511), introduced by Rep. Robert Goodlatte of Virginia. That bill has been referred to committee and is given only a nine percent chance of being passed. Goodlatte's bill, similar to H.R. 2196, provides copyright protection for "apparel" defined as men's, women's, or children's clothing, including undergarments, outerwear, gloves, footwear, and headgear, handbags, purses, wallets, tote bags, belts, and eyeglass frames. The definition of "fashion design" also remains the same:
'A fashion design' (A) is the appearance as a whole of an article of apparel, including its ornamentation; and (B) includes original elements of the article of apparel or the original arrangement or placement of original or non-original elements as incorporated in the overall appearance of the article of apparel.

In a nod to existing copyright law, which only protects the non-utilitarian, non-functional aspects of a work, the drafters of the new bill added that a protected article of apparel must be the "result of a designer's own creative endeavor and provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles." Here, the legislation opens the door for fashion design while keeping it closed for protecting functional aspects of a design. One wonders how difficult in practice it will be to make the separation.

H.R. 2511 makes another interesting change to the definition of "fashion design" by also defining "substantially identical" as an "article of apparel which is so similar in appearance as to be likely to be mistaken for the protected design." No doubt big fashion -- desiring to eliminate knock-offs -- was an influence here. On the other hand, the bill tries to mollify critics of the previous legislation by adding a so-called "Home Sewing Exception" that permits individuals to produce a single copy of a protected design for personal, non-commercial use.

Finally, the new legislation limits copyright protection for fashion designs for only three years after making it public and if you want to seek protection for a design under the act, you must sue infringers within the same time period. In the earlier bill, the law demanded owners to register their copyrights within six months of making the designs public while not imposing special limits on the copyright term. Perhaps the drafters of the new legislation hope that a more limited protection would enhance the chance of the bill's passage. We will keep you informed.

...But We're Important!

The Economics and Statistics Administration, an arm of the U.S. government, and the U.S. Patent and Trademark Office have issued a report on the importance of intellectual property (patents, trademarks and copyrights) to the U.S. economy. According to the report, as of 2010 over 27 million people are employed directly in industries identified by the PTO as 'IP-intensive,' which accounts for almost 19% of all U.S. employment. Supply chain employment to feed those IP-intensive industries amounts to another 12.9 million jobs, for a total of 40 million jobs, or 27.7 % of all U.S. employment either directly or indirectly reliant on IP-intensive industries.

The reports notes that persons employed in the IP-intensive industries are better educated and paid better than their non IP-intensive counterparts. The IP-intensive industries are recovering from the recession faster than other industries and the IP-intensive industries account for over 60% of all U.S. exports of merchandise.

In short, intellectual property is important and companies in industrial sectors that utilize intellectual property are more prosperous than companies in industrial sectors that do not. We should note that the PTO is not an entirely neutral observer here. The more important the role of patent and trademarks to the U.S. economy, the more important the role of the PTO.

Ask Dr. Copyright

Dear Doc:

I hear a lot about storing files on "the cloud" these days. From your perspective, do I lose any rights when I use such a service? They sure are convenient!
Signed,
Will Robinson

DANGER, WILL ROBINSON!!! DANGER!!!

The "Doc" has reviewed the terms and conditions of the license agreements of a few "cloud" storage services, and here is what he found...

DROPBOX

"By using our Services you provide us with information, files, and folders that you submit to Dropbox (together, "your stuff"). You retain full ownership to your stuff. We don't claim any ownership to any of it. These Terms do not grant us any rights to your stuff or intellectual property except for the limited rights that are needed to run the Services, as explained below."

MICROSOFT SKYDRIVE

"Except for material that we license to you, we don't claim ownership of the content you provide on the service. Your content remains your content. We also don't control, verify, or endorse the content that you and others make available on the service."

APPLE iCLOUD

"Apple does not claim ownership of the materials and/or Content you submit or make available on the Service. However, by submitting or posting such Content on areas of the Service that are accessible by the public or other users with whom you consent to share such Content, you grant Apple a worldwide, royalty-free, non-exclusive license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content on the Service solely for the purpose for which such Content was submitted or made available, without any compensation or obligation to you."

GOOGLE DRIVE

"When you upload or otherwise submit content to our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content."

For comparison, here are the terms for Google's incredibly popular GMail service:

GMAIL

"Google claims no ownership or control over any Content submitted, posted or displayed by you on or through Google services. You or a third party licensor, as appropriate, retain all patent, trademark and copyright to any Content you submit, post or display on or through Google services and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying Content on or through Google services which are intended to be available to the members of the public, you grant Google a worldwide, non-exclusive, royalty-free license to reproduce, adapt, modify, publish and distribute such Content on Google services for the purpose of displaying, distributing and promoting Google services. Google reserves the right to syndicate Content submitted, posted or displayed by you on or through Google services and use that Content in connection with any service offered by Google."

So, Will, of all of these services, the new Google Drive service is the one to avoid (for now) because anything you put on that service may be used by Google in any way (public performance?) whether you intend to make it public or not. The "Doc" uses some of these services, but NEVER puts anything confidential on them without first encrypting the information using a very strong public key encryption program (GPG) using a 2048 bit key. By the way, if you're a lawyer, accountant or medical doctor, you have other professional rules that may limit your use of cloud services. Be careful of those, too. The "Doc" may be paranoid, but remember the old saying, "Just because you're paranoid, it doesn't mean that they're NOT out to get you!" You've been warned. Now remember to turn on the force field before you go to bed.

The "Doc"