Designer Nino Scalia recently released a collection that is "a tribute to timeless fashion and family history." Entitled, Project H, it is meant to raise enough money to bring Scalia's entire family (they are not related to Supreme Court Justice Antonin Scalia, as far as I know) to Ireland so they can spread his mother's ashes there. The story behind the collection, which is being sold exclusively by Union Los Angeles, is undeniably sweet. But lawyers are notoriously ruthless, merciless individuals. So, for the sake of legal analysis and legal analysis alone (remember: the project is for a good cause, after all), let's look at the legality of the situation, because it actually poses some interesting issues.
Scalia's collection consists of several different Hermès scarf motifs printed on jersey-style tops and basketball shorts. Both by description ("a small collection of tees and shorts that give new life and context to vintage Hermès scarf graphics") and on its face, the collection seems to be heavily infringing the Hermès copyrights that stem from the images printed on the scarves at issue and thus, on the garments in Scalia's collection. The scarves, which according to Scalia, are family heirlooms, were issued in 1954 and 1974 (which means that these specific images are all governed by the Copyright Act of 1909). The method in which Hermès acquires the original prints that are depicted on the scarves is relevant for determining the type and thus, the duration of the copyright protection and of course, whether or not Scalia's project is illegal.
The Paris-based design house has about 50 freelance artists on board at any given time working on designs for scarves, which are released or placed in the house's library for release in the future. Even though the designs essentially are collaborations between Hermès and the individual designers, Hermès retains the intellectual property and the artists are paid a royalty on sales. This means that either: the works at issue are characterized as "works for hire" for which ownership automatically vests in the employer (Hermès, in this case) or the artists assigned rights in the original designs to Hermès.
Here is a very brief look at copyright as it relates to Works Made for Hire and commissioned works. (If you don't care about the legality of the situation, skip ahead.) For the most part, the copyright in a work becomes the property of the author (or artist or designer or composer, etc.). However, there is an exception: “works made for hire.” If a work is made for hire (aka was created by an individual in the usual course of his employment, or it was commission for part of a collection of works, etc.), an employer is considered the author/copyright owner even if an employee actually created the work.
So, essentially, if we assume that the images that appear on the scarves upon which Scalia based his Project H collection, are works made for hire (under the assumption that they were commissioned for part of a collection of works, let's say), then the copyright protection lasts for 28 years, subject to a 28 year renewal (we are also assuming the designs were registered). If this reasoning applies, there is a chance that one of the designs at issue, the "Les Armes de Paris" design (pictured below, left), which was created by Hugo Grygkar and released in 1954, is in the public domain, and thus, is free for anyone to use and Scalia is not infringing that copyright. However, this likely doesn't apply to the the Philippe Ledoux-created "Springs" design or the "Eperon D'or" design, which was designed by Henri Dorigny - both of which were released in 1974. However, this is largely based on speculation, as copyright registrations for all works predating January 1, 1978 are not searchable in the online catalog.
If he were faced with a copyright infringement case from Hermès, which I highly doubt would ever happen, considering the fact that Hermès has bigger legal rivals to worry about (namely: LVMH), Scalia could always argue fair use, but I'm not sure how well he would fare with the defense. You probably know by now, if you've read any of my thoughts on artist Wil Fry's works, that the four factors that judges consider when evaluating fair use are: 1) the purpose and character of your use; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion taken; and 4) the effect of the use upon the potential market. Because Scalia basically just took the entire image from the scarves, copied it onto shirts and shorts, and then offered them for sale, at a legitimate retailer, I have a hard time believing that fair use would be his friend in this case.
After all of that, there is some great news. For Scalia, the good news, as I mentioned above, is that Hermès has quite enough going on, think: rival lawsuits with LVMH and endless amounts of trademark counterfeiting, that the few garments that he is selling for about $200 each are probably not even on the design house's radar. The good news for readers that like Hermès-looking sportswear, the pieces are still in stock on Union LA's website and you can shop them here.