Posts Tagged ‘Fashion’

Is Urban Outfitters Breaking the Law by Copying Designs?

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?

Answers:

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.

 

Thursday Afternoon Link Explosion

The owner of a restaurant called the Heart Attack Grill has filed a trade dress lawsuit against a similarly themed eatery called Heart Stoppers Sports Grill. Reading about this suit will either turn your stomach or make you ravenously hungry. [Story and photo courtesy the  Wall Street Journal Law Blog]

I can haz damajes? ICanHasCheezburger and Failbooking owners sue alleged competitor who supposedly just stuck Failbooking in a frame to provide content for his own (some say better) URL, Failbook. [Techdirt via Erik J. Heels]

The first textbook on fashion law has just been published. It covers everything from intellectual property to employment disputes. [Stylelist]

Remember the FTC’s new stricter rules for blogger endorsements? Jezebel is highlighting why they might have come into existence by pointing the finger at a number of fashion bloggers who received gift cards from Ann Taylor in exchange for covering an Ann Taylor event. Was the coverage favorable? Guess. [Jezebel via Erik J. Heels]

A great post on “Ten Smart Reasons to Learn About IP Law” from the new blog IP Law for Startups. Aspiring entrepreneurs should read this post twice.

 

Sneakerheads Take Note: New Balance Drops Trade Dress Suit Against Louis Vuitton

StyleList reports that New Balance has settled a trademark suit against Louis Vuitton for allegedly infringing upon its legendary 574 sneaker design. As part of the settlement, LV agreed to cease production of its “Minstrel” model, seen below (photo from fashionphile.com). Upon hearing the news, Pharrell Williams reportedly shed a single tear.

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