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Surface design copyright

Citizen Media Law Project 2015-10-13

It’s such a rare thing for a sewing blog to point me to a copyright story (albeit one with a misleading headline—I don’t think you can be a patent troll if you are enforcing a copyright) that I feel compelled to post about Fortune’s recent article on surface-design copyright suits. The past decade, Fortune reports, has seen a surge in lawsuits by textile companies, evidently mostly represented by a single L.A. firm.

On the one hand, I’m happy to hear this. I’ve worried in the past that advocates for greater copyright protection of fashion benefit from the blurring the line between the design of a print (protectable under current law) and the design of a pattern (not protectable under current law).

A few years ago, I was at a lecture on copyright protection for fashion and witnessed a definite gasp of outrage from the audience when the pro-design protection speaker, Jeannie Suk, showed the image below. (These dresses are also the opening anecdote in Kal Raustiala and Christopher Sprigman’s book, The Knockoff Economy, which argues against design protection.)

Side-by-side photographs of two similar empire-waisted maxi dressed made from cream fabric with floral panel print and trimmed in black

The dress on the left is by Foley & Corinna and the dress on the right by Forever 21.

I’ve done a moderate amount of digging (e.g., this NYT article), and I don’t think the case of these dresses was ever litigated. If it had been, I wouldn’t have been surprised by a victory for the plaintiffs, one that would avenge the outrage of that lecture audience.

The dress’s style lines are dictated by utilitarian concerns and thus not protectable. In my opinion, that is a clear case. (And even if this argument fails, the maxi-dress-with-black-outline design is either scènes à faire or an unprotectable infringing derivative work.)

However, the surface design seems to me to be conceptually separable and thus protectable. If it is, then a court would have to compare the two, filtering out unprotectable elements (e.g., the leaflike stuff is green). From these photographs, I think it’s clear that the print is not a mechanical reproduction, but I also think there’s a colorable infringement case (not too different from Boisson, for example). Of course, it’s tough to get into the substantial similarity tests with this quality of photograph.

I think this similarity is what accounts for the outrage the two pictures above might excite, and I’ve counted this as a rare instance where copyright law agrees with my instincts. I’ve also, until now, assumed that the scènes à faire doctrine and filtration would prevent overuse of this line of attack in cases where the original print is unprotectably basic or the two prints don’t share protectable elements. Thanks to Fortune, I’m now aware of a goldmine of cases on this topic, perhaps even enough to make some broader conclusions.

Unfortunately, most of the goldmine is caged up inside PACER. It would be quite a project (and quite an investment, even with very careful querying) to RECAP them all. Several of the cases have been reported in California Apparel News, others on the the firm’s blog, but these are the cases that go furthest along the litigation path, hardly a fair sample.

Here are a few lovely fabrics from Mood showcasing long-time classics of textile design. Here’s hoping no one is suing over this sort of thing:

Fabric with tan circles packed in hexagon-type design on black backgroundBlack jacquard with small light gray triangles arranged in grid patternFuschia netting woven to resemble ginghamCrepe with medium vertical stripes in black, navy, and grayFabric with black and white crosshatch design resembling plain-woven fabricMedium gray fabric with dark gray windowpane checks

I’ll close with the resources I have found on a small set of the cases:

Finally, here’s an interesting (but very salesy) article with a lot of the raw numbers on fashion copyright litigation.