Cara Delevingne is not making any new friends with her latest foray into fashion for a good cause. The model-turned-actress is coming under fire after allegedly "stealing" the design of a sweatshirt from Los Angeles-based designer, Rachel Berks, who heads up design label, Otherwild. According to Berks, Delevingne stole the design of a sweatshirt that reads, “The Future Is Female,” from her. Delevingne took to her Instagram account to share the following with her 23.4 million followers: “THE FUTURE IS FEMALE. A lot of you have been asking for one of these – so I decided to put them up for sale, with proceeds going to Girl Up!” The problem with Berks' claim: Her design isn't original either.
One of the most interesting parts of the case at hand stems from the copyright allegations, especially considering that neither party actually created the design. Note: Berks admits that her company's shirt design was inspired by a photo of Alix Dobkin, a folk singer, which was taken in 1975 by her girlfriend at the time, Liza Cowan (pictured below).
In an interesting interpretation of copyright law, Berks told the fashion press, that the Otherwild design is not only exempt from copyright infringement but it is subject to protection. Her reasoning is as follows: “Otherwild's redesign and reissue of the [Future is Female] tees and buttons is protected under copyright law, which mandates that any reproduction of an existing known public work must be altered at least 20 per cent from the original.” I’m not entirely sure what statute she is citing. However, it seems that she is getting at the standard for avoiding infringement claims, as opposed to the standard for achieving protection. With that in mind, the standard for gauging infringement (read: whether a defendant has infringed a copyright holder/plaintiff’s right of reproduction) is “substantial similarity,” which varies quite a bit by jurisdiction, but essentially requires a plaintiff to show that the defendant’s work is substantially similar to the original, copyrightable expression in the plaintiff’s work.
As for what exactly Otherwild's “redesign” is, I, for one, am not entirely sure. It looks to me like Berks’ brand did little more than copy the original – changing just the font, and slapping it on a sweatshirt. With this in mind, there is a good chance that Berks' design infringing the copyright in the original “The Future is Female” design. And if, by some chance, Otherwild does have copyright in its version of the design, the protection is extremely slim, if it exists at all.
While copyright ownership is very unclear in the case at hand, what we do know is this: According to a recent New York Times article, "The original T-shirt [as pictured on Dobbin, above] was created for Labyris Books, the first women's bookstore in New York City, which opened in 1972. In 1975, photographer Liza Cowan took a picture of her then-girlfriend, Alix Dobbin, wearing it, which she published in the magazine, DYKE: A Quarterly.” However, because we do not know who created the original t-shirt, I cannot say with complete certainly who the copyright holder is.
It is worth noting that there does not appear to be a U.S. Copyright Office registration in connection with the original t-shirt design. Given the year of creation of the original, 1972, it is essential to point out that the Copyright Act of 1909 was in effect, and as a result, in order for the creator of an original work of art to be granted copyright, he/she was required to register the work with the U.S. Copyright Office. (The law has subsequently changed with the adoption of the Copyright Act of 1978 and the ratification of the Berne Convention, meaning that formal copyright registration, etc. is not required for the creator of an original work to gain rights in a that work).
And because this is anything but a clear-cut case, there is, in fact, a registration that extends to “The Future is Female,” – but it does not belong to any of the parties currently involved in this situation. Instead, it was author Harry Gato, who published a book, entitled “The Future is Female,” that registered the phrase with the U.S. Copyright Office in 1976. In short, if there is copyright infringement at issue here, it seems that it is not Labyris Books’ or Berks’ rights that are being infringed – it is Gato’s.
Finally, if we are being really thorough, consider yet another party: Suzanne Sizer, a San Francisco-based photographer, who very recently has filed to federally register “her” trademark in the saying “The Future is Female” in the class of goods that covers t-shirts. While this situation will likely not make it into a court room, particularly because lawsuits have not been filed, it would be an interesting one to watch play out.