Last week, jewelry designer Stephanie Koerner posted a blog post entitled “Not Cool, Urban Outfitters, Not Cool,” with pictures of her custom state-shaped jewelry and similar items recently spotted at Urban Outfitters.
The Village Voice followed with “Are Brooklyn Fashion Designers Being Ripped Off by Urban Outfitters?“, listing other alleged design thefts by UO, but concluding wistfully, “everyone steals from everyone, and if you have an original idea, there’s nothing you can do, because there’s someone out there … who will exploit your originality and leave you on the side of the road.”
(And, as is often the case, the comments thread in the Village Voice piece is full of people repeating incorrect information about copyright, including the old “poor man’s copyright” method and the idea that you have to federally register a copyright to “have a copyright” in a creative work).
UO struck back with a blog post identifying “several other sellers with similar products” and stating that “the idea is not unique to Koerner and she can in no way claim to be its originator.”
UO linked to a post on Regretsy entitled “Urban Outrage” which argues that Koerner was not the first person to create and sell the design in question, a silver state-shaped charm with a heart over the state’s capital.
Koerner’s first state charm sale (Ohio) allegedly came in April 2009, but at least one Etsy seller sold a similar design (California) in December 2008, and another online jewelry merchant sold a similar design (Texas) in May 2008. The Regretsy post also shows many similar designs being currently sold by competing Etsy sellers.
UO, however, conveniently leaves out that the Regretsy poster, far from vindicating UO, states, “[UO] certainly have a record of pilfering designs, and they may very well have stolen this one. The question, for me at least, is who did they steal it from? And if we don’t know that much, how do we know it’s really been stolen at all?”
This is closer to a real analysis. What’s the truth? Is Koerner out of luck? Did she steal the idea herself? If she had been the original creator, could she have pursued legal remedies against UO?
1) The level of creativity required to assert a copyright in a creative work is relatively low. The original creator of this design would be able to protect it. The fact that others widely borrowed it would not make it “generic.” There is no genericity analysis in copyright law.
2) Copyright infringement requires copying. If UO had truly hit upon this exact idea independently, without ever seeing a similar product, they would be protected. An infringement suit requires a showing of access to the infringed work, as well as a showing of substantial similarity.
3) The fact that another merchant sold a similar product online 18 months before Koerner did does not prove that Koerner stole her design from that merchant. Perhaps Koerner simply didn’t get her design onto the Internet until after that first merchant.
4) There may be a common ancestor from which all of these designers have borrowed this design. This doesn’t mean that UO is off the hook. It just means we are witnessing a long chain of copyright infringement! The originator of the design still might be able to pursue UO if he or she could prove that UO’s designers had seen their state charm, as well as Koerner’s, before creating UO’s version.
The ugly reality is that most small designers simply don’t have enough money to pursue a copyright infringement lawsuit to a verdict against a big company like UO. However, given that the financial penalties for copyright infringement are huge, a cease and desist letter might be worth it. If a big company is ripping you off, you might want to talk to a copyright lawyer (hi!) and explore your options.
This entry was posted by Richard on Sunday, June 5th, 2011 at 4:51 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response below, or trackback from your own site.