NY Sen. Schumer has proposed a law to provide enhanced copyright protection for fashion designs (recall that common-law currently provides some level of protection on the “separability” theory and that trade dress infringement is otherwise used to protect against design theft). Schumer’s proposed law would allow pre-registration infringement suits and would protect designs for 3 years (which many have pointed out is the equivalent of an eternity in the fashion world).
An excellent analysis of the pros and cons of design protection (as well as the current state of affairs in this field) can be found here. A major concern, in my opinion, is the inherent line-blurring between expression and utility in clothing design — Schumer’s law may unwittingly protect obvious design features, thereby providing designers with an unfair market barrier against competition.
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