Last fall, Fortune published an article addressing the rise in copyright trolls in the fashion industry. “Over the past few years, textile companies based mostly in Los Angeles have managed to push themselves to the forefront of a new trend in the fashion industry: copyright infringement lawsuits. The complaints target print designs on garments, one of the few aspects of a garment eligible for copyright protection in the U.S.,” wrote columnist Noah Smith, and he is right.
Textile firms that hold copyrights in print designs (think: florals, paisleys, geometric designs, animal skin patterns, and the like), such as L.A. Printex, which alone has filed more than 700 copyright infringement cases over the past five years, have taken to filing infringement suits against retailers with increasing frequency. The trend has been likened by many to “legalized extortion.”
Fun fact: The prints/patterned materials from which many garments are constructed are one of the few aspects of a garment that are eligible for copyright protection in the U.S. Copyright protection does not extend to the cut of the cloth, or the design of a garment as a whole, since these articles are utilitarian. However, the print found on the fabric of clothing is copyrightable to the extent it meets the requirements for protection – namely, fixation and originality – since fabric patterns are capability of existing separately from the utilitarian nature of the clothing.
As recently as last week, Urban Outfitters and a number of other retailers settled a copyright infringement case for $416,000 after trial in the Central District of California. But Urban Outfitters is certainly not alone in being targeted by copyright trolls. Fast fashion brands, such as Zara, Forever 21, H&M, and Nasty Gal have been repeatedly on the receiving end of copyright trolls’ lawsuits, as have more esteemed retailers like Nordstrom, Neiman Marcus, Gilt Groupe, and Kellwood Company, which owns Parker and Rebecca Taylor.
With the latter group of companies in mind, what can you do, aside from designing your own patterns, to avoid being targeted by a copyright troll? Here are some things to consider:
1. Start by asking your printer or textile supplier if it company has a copyright registration for the pattern being considered. Ask to see evidence of “original-work” authorship (either art work or a knitted sample). If the supplier has purchased the design from an art studio or another entity, require that the sale to you includes a statement that the original copyright is being transferred to you.
2. Get an indemnification clause (a promise by the other party to cover your losses if they do something that causes you harm or causes a third party to sue you), in writing, from the supplier that covers you and anyone to whom you sell product. This should be included in your purchase order.
3. Purchase your own copyright infringement insurance. Some policies are expensive but it is a small price to pay to protect yourself and your customers.
4. Use “public domain designs.” These are designs that are available without issues of copyright ownership. There are facilities that maintain libraries of thousands of prints already in the public domain or that “exist in nature.” You can select a design from any of these reference materials and have it made. You do not have the right to copyright that design either, but it will keep you out of the courtroom.
5. And last but not least, if you are not comfortable with the supplier's response to your due-diligence inquiries, then do not buy the pattern.