The fashion industry is inherently imitative. Many fashion companies are engaging in the same thing at the same time, often using the same influences. As a designer, understanding what products can be protected or are subject to protection can give you a design advantage and help you avoid legal issues.
Intellectual property law concerns patents, trademarks, copyrights, and trade secrets. Intellectual property protection in fashion is complex. For some fashion products, a designer can protect his or her product by a variety of forms of intellectual property. With other fashion products, thin or no protection may be available through intellectual property law. Copyright is one way designers can protect their designs. This is a first piece of a three piece series on copyright law for fashion designers.
What is a Copyright
Copyright protects original works of authorship that are fixed in tangible mediums of expression. That is, copyright protects the artistic or aesthetic aspects of a product, but it does not protect the functional aspects. Copyright also does not protect ideas, but instead, protects how an idea is expressed. Copyright can protect designs or images on accessories (e.g., shoes, handbags, jewelry, etc.), fabric prints, jewelry, website designs, photographs, etc.
Copyright in Fabric Prints
Specifically, fabric prints are considered to be a proper subject of copyright law for the pictorial and graphic elements on the fabric. In recent years, copyrights in fabric prints, or the infringement thereof, have been of increasing concern. Some fast fashion companies exactly reproduce fabric patterns designed by others on a regular basis. Other fashion companies skirt around the issue of copyright infringement and make a few changes to a fabric print in an attempt to avoid infringement allegations. Many times, these companies get away with copyright infringement. Other times, they do not. At least 300 copyright infringement lawsuits are filed each year involving fabric prints.
Exact Reproduction Constitutes Copyright Infringement
Take for example, a recent lawsuit where Hot Shot HK doing business as Brat Star Inc. and The Wet Seal, Inc. were ordered to pay Novelty Textile, a Vernon, California, based company a combined $650,000 in statutory damages for infringing three different fabric designs. In that case, Novelty Textile owned copyright registrations on all three fabric designs. Hot Shot HK placed purchase orders for fabrics and later canceled them only to have the fabric copied and produced in China. The fabric designs were made into clothes sold to Wet Seal. Wet Seal continued to sell garments made of the infringing fabric to consumers despite having received a cease-and-desist letter. The court determined that Hot Shot HK and Wet Seal willfully infringed Novelty Textile’s copyright and awarded Novelty Textile $650,000. On March 4, 2015, the California court also awarded Novelty Textile nearly $400,000.00 in attorneys’ fees and costs.
Influence may Constitute Copyright Infringement
In other examples, copyright infringement is not as clear as it was in the Hot Shot case discussed above. For instance, in Australia, Fewstone Pty Ltd doing business as City Beach did not exactly reproduce designs owned by Seafolly Pty Ltd. Instead, Fewstone had created designs with similar design elements (e.g., layout, selection, arrangement, style, etc.) but differences between visual elements. That is, Seafolly’s designs were used as inspirations for the Fewstone designs, but Fewstone did not exactly reproduce Seafolly’s designs. Notwithstanding the differences, the court ultimately decided that the Fewstone infringed Seafolly’s copyright because it had represented a substantial part of Seafolly’s design elements in its own works. Fewstone was ordered to pay damages totaling $250,333.06.
Are you interested in learning more about copyright?
On April 25th, the Seattle Fashion Incubator and Lee & Hayes will be hosting a workshop to discuss copyright, fabric patterns, and incorporating another designer’s fabrics into your own designs. Sign up here so we know you’re in!
Fashion law is an ever emerging area of law that deals with the business problems of the fashion industry. The area of fashion law encompasses a breadth of legal disciplines including intellectual property, business, employment, regulatory, immigration, and zoning. Libby Zinke is an attorney at Lee & Hayes, PLLC. Her practice focuses primarily on intellectual property procurement and enforcement. Lee & Hayes is a full service law firm with nationally recognized corporate and litigation attorneys who are well versed in addressing other legal issues faced by fashion designers.
This blog post is intended for educational and informational purposes only and is not intended to provide specific legal advice. By reading this blog post, you understand that there is no attorney client relationship between you and the blog author. This information should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.