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copyrightable works may prove unworkable as applied to garment designs. 106 While protection for garment designs should require a showing of "originality" (as is required of other copyrightable works107), that standard must be specially applied in light of the uniqueness of the garment industry.108

To show originality, a creator would be required to demonstrate that his design is not a copy of another's-that the design is his 109 by showing that the design is not currently registered.110 Upon such a showing, and in return for creating (or re-creating)||| public interest in, and a current market for, the design,112 copyright protection would issue. 113

The threshold standard of originality must not be so high that protection for most designs is precluded.14 If the standard were

garment design can ever really be considered "brand new”: garment designs generally consist of elements already "discovered." "Old" elements are incorporated either in a new combination or at a time when such elements are not generally in vogue. Often, then, the appeal of garment designs lies solely in the re-creation of public interest in a design from the past. See, eg., supra note 94 (discussing French protection based upon the “popularizing” of a design).

106. Since garment designs often consist of elements already known to the world, but presented in a new manner, or in a new collection of fashions, it could be argued that they should not qualify as original works of authorship. See supra note 105. 107. 17 U.S.C. § 102 (Supp. V 1981).

108. "The common practice of copying styles among dress designers presents problems peculiar to that field. It would seem, however, that Congress should make specific provision for this industry." Note, Copyrighting Works of Artistic Craftsmanship Embodied in Articles of Practical Use, 27 Ind. L.J. 130, 136 n.33 (1951) (emphasis added). See supra note 105.

109. If this showing were not required, "pirates" could end up as copyright

owners.

110. The requirement that the design not be currently registered would ensure that only one copyright owner would exist for each design at any given time. The fact that a later designer could obtain a copyright for a previously copyrighted design (or one substantially similar to it) should not be surprising, considering that much of the reason for granting a garment design copyright lies in the fact that a designer should be rewarded for re-creating public interest in the design. See supra note 105. For a proposed system regarding term and registration of the garment design copyright, see infra text accompanying notes 117–137.

III. See supra notes 105, 110.

112. Although under traditional copyright standards this threshold may seem low, see supra note 106, the fickle nature of fashion requires that protection be keyed to what a designer succeeds in making currently stylish. For discussion of a similar system in France, see supra note 94.

113. Unlike the case with patents, see supra text accompanying notes 44-45, a copyright application does not require extensive examination of contemporary works or preexisitng similar registrations. Copyright protection issues upon successful completion of the application's requirements. The copyright may be subsequently challenged, however, as being invalid, for example, due to lack of originality.

114. Only in rare cases would a garment design represent a significant improvement over or change from the prior art so as to qualify for a design patent. See cases cited supra note 43. For example, specialized industrial clothing or astronaut suits might qualify for design patent. See 35 U.S.C. § 171 (1976). See also supra notes 43-47 and accompanying text.

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excessively high, the very purpose of extending copyright protection-protecting most designs from piracy-would be defeated. Under the system proposed by this Comment, only those garment designs exhibiting creativity is would be protected, while purely functional, non-creative, "two-sleeves-and-a-body" designs16 would be denied protection.

B. Term of Copyright Protection

Given the highly seasonal and capricious nature of fashion, or public tastes, 117 the term of copyright for garment designs should be limited. This Comment proposes that the copyright for garment designs last one year.118 A term of one year would provide protection from design piracy precisely when protection is most needed-when the design is new.119 A one-year term should provide enough time for most designers to recover substantial “rewards" for their creations. 120 The public interest would also be safeguarded: limiting the duration of the garment design copyright to one year would ensure that no designer could secure a long term monopoly on a design.121

C. Establishment of a Compulsory Royalty System

Extending copyright protection to garment designs will result in hundreds, if not thousands, of garment manufacturers 122 using

115. See supra note 105.

116. See supra text accompanying note 87.

117. Sec supra note 46 and accompanying text.

118. It may be argued that a longer term is appropriate due to the time lapse between the first showing of a design to trade buyers and its appearance at the retail level. Similarly, some consumers are less responsive to fashion changes and so a longer term of protection could be called for. Generally, however, garment designs are still of most value when new, and therefore most design piracy occurs soon after a design has been shown. Since the style life for most garments is three months, see supra note 46 and accompanying text, a one-year term would seem adequate to protect against design piracy. See, eg, note 6. Additionally, a one-year term reflects a balancing of the interests involved in such a copyright. See supra text accompanying notes 37-38, 80-93. A decision by the Tribunal of Commerce of Nice similarly limited the French copyright term to one season. See Castel, supra note 3, at 766 (citing Gros et cie. v. dame Gally, Gazette du Palais (May 19, 1953)).

119. See supra notes 112, 118.

120. In those rare instances where a style would remain marketable to fashion retailers one year after its creation, the public policy concern that such designs should become more fully accessible to the public is likely to outweigh the concern for further protecting the designer. See supra note 38 and accompanying text.

121. For a discussion of how monopolistic practices concern the garment industry, see supra text accompanying note 38.

122. In 1977, the number of establishments in the apparel industry exceeded 15,000. AMERICAN APPAREL MANUFACTURERS ASSOCIATION, FOCUS: ECONOMIC PROFILE OF THE APPAREL INDUSTRY 16-17 (1980).

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[Vol. 30:861 copyrighted designs in their product lines. 123 The large numbers of different designs and potential infringers could be seen as reasons not to extend copyright protection to garment designs. Providing copyright for garment designs might lead to an enormous amount of litigation over copyright infringement and license agreements. 124 Such a result is not inevitable, however. To meet this concern, this Comment proposes a compulsory license and royalty system125 to implement the garment design copyright.

Under the proposed system, as under current law, once a designer made his designs public, 126 the world would be free to copy them.127 The proposal differs from the status quo in one significant respect: the copyist would be required to pay a small royalty, or "license fee," "128 to the original designer for each copy the copyist manufactures. 129

The proposed system, unlike previous efforts to extend copy

123. Many of these manufacturers will continue to use the designs of others, but, under the proposed system, those same designs will be copyrighted.

124. Copyrights have traditionally been enforced through infringement actions or implemented through licensing arrangements whereby the copyright owner relinquished by license his monopoly in return for a fee. See generally 3 M. NIMMER, supra note 17, §§ 10, 12.

125. Compulsory license and royalty systems already exist in copyright law. Such systems eliminate the need for individual negotiations over license fees and are particularly useful where there are massive numbers of potential licensees of a work or where the number of infringing copies per copyist is small. For similar systems under current law, see 17 U.S.C. § 111 (Supp. V 1981) (cable television); 17 U.S.C. § 115 (Supp. V 1981) (phonorecords); 17 U.S.C. § 116 (Supp. V 1981) (juke boxes); 17 U.S.C. § 118 (Supp. V 1981) (noncommercial broadcasting). See generally Note, Recognition of Legal Rights in Ideas, 47 Harv. L. Rev. 1419 (1934) (proposing a similar system for the distribution of rewards from non-patentable business and scientific discoveries).

126. Designers generally "make public" their designs by presenting them in fashion shows to prospective retail buyers. See Wm. Filene's Sons Co. v. Fashion Originators' Guild of Am., 90 F.2d 556, 558 (1st Cir. 1937). These runway shows are highly publicized, so that the press coverage allows consumers to view the designer's new line almost contemporaneously with retail buyers.

127. See supra note 104.

128. The license fee or royalty could be either a fixed amount per copy or a percentage of the retail sales price of copies. Compulsory copyright royalties under the current law are set as fixed sums per use of the copyrighted work, which facilitates calculation of royalty payments and makes them uniform. See those sections of the Copyright Act cited supra note 125.

This Comment suggests a royalty of 1% of the retail price per copy. Assuming a 1% royalty, this system would return 87.4 million dollars in additional revenue to the designers. See supra note 7. Two purposes of copyright are served by virtue of this exchange. The creator is rewarded, and the public secures the benefits of his labors. See supra notes 88-93 and accompanying text.

129. Congress would establish the amount of the royalty fee with the Copyright Royalty Tribunal possessing authority to readjust the royalty rate. The Tribunal currently has authority to adjust the royalty rates for the other compulsory copyright licenses. 17 U.S.C. §§ 118(b)(3), 801(b)(1)–(2) (Supp. V 1981); Copyright Royalty Tribunal Rules of Procedure, 37 C.F.R. § 301.1(a)–(c) (1982).

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right protection to garment designs,130 would not vest designers with a monopoly over access to garment designs.131 As a prerequisite to copyright protection, designers would be required to agree to the non-discriminatory licensing 132 of their designs. The corresponding fear that granting copyright protection would result in the elimination of moderately-priced apparel from the market 33 is mitigated under the proposed system: the price of any garment should rise by no more than the small amount of the legislated royalty rate.

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The compulsory license system would also facilitate enforcement 34 of the garment design copyrights. Rather than risk the high costs of defending an infringement action,135 copyists probably would pay the relatively low royalty payments. 136 In addition, the administration of the garment design copyright system would not be particularly difficult. The Copyright Office would serve largely as a clearing-house for the payments of the compulsory royalties, providing ready access to information such as the owner of the design copyright,137

130. See supra note 30.

131. The fear of establishing a monopoly in the garment industry was primarily responsible for the defeat of past attempts to expand copyright protection to garment designs. See supra notes 36-38 and accompanying text.

132. This ensures that the purpose of copyright law-to promote and encourage creative works of art by rewarding the creator-is fulfilled. See supra notes 88, 89, 92 and accompanying text.

133. See supra text accompanying note 38.

134. Typically, copyrights are enforced through infringement actions, an impractical prospect in the field of garment designs due to the large number of copyists, or "pirates," who manufacture small quantities of copies. See supra note 122 and accompanying text.

135. The costs of defending a copyright infringement action can reach $100.000 quite easily. Interview with Melville Nimmer, Professor of Law, UCLA School of Law (Jan. 21, 1983) (documentation on file at UCLA Law Review). Cf. News & Comment, PAT. Trademark & CopYRIGHT J. (BNA) A-2 (No. 425, April 19, 1979) (costs for a patent infringement action average $250,000 for each party).

136. It is possible that a garment manufacturer might pay the fee when it is not necessary because his design is not similar enough to the original creation. Human nature being what it is, however, this possibility is fairly remote. Additionally, if unnecessary payments were to occur, the designs would probably be so close that the decision as to whether the second one was a copy of the other would likely be a judgment call. In such cases, it would seem appropriate to give the original designer the benefit of the doubt.

If enforcement of the garment design copyrights were to prove cumbersome, the compulsory royalty system could easily be converted into a system whereby licensing fees fund a "pool" used to bring enforcement actions and police the use of designs. A similar system operates privately in the music industry, with royalties collected by, and enforcement done through, private performance rights societies such as the American Society of Composers, Authors, and Publishers; and Broadcast Music, Inc. See M. NIMMer, Cases and Materials on COPYRIGHT 237-38 (2d ed. 1979).

137. The Copyright Office presently serves this function for the four existing compulsory royalty systems. See supra note 125.

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A compulsory license system thus removes many of the objections raised in the past to the extension of copyright protection to garment designs. 138 Such a system would provide a pragmatic method for implementing copyright protection in the garment industry.

CONCLUSION

The search for a method of protecting garment designs has thus far proved fruitless. Since the creative aspects of garment designs go unrecognized under present law, the practice of design piracy denies garment designers the opportunity to fully benefit from their creations.

According garment designs copyright protection is the best means of resolving the problem of design piracy. Development of a system of limited copyright protection for garment designs would accommodate the interests of the public by providing ready access to original designs in exchange for a small royalty. At the same time, the problem of design piracy would be solved by assuring designers that they will be compensated for the use of their designs. Thus, consumers and designers alike would benefit from such an extension of copyright law, and designs in the garment industry would at long last be granted protection.

ROCKY SCHMIDT

138. See supra notes 122-137 and accompanying text.

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