According to the Los Angeles Daily Journal, the most recent copyright infringement case against Urban Outfitters and other retailers was settled for $416,000 after trial in the Central District of California (Not-fun fact: 26 percent of the 2,500 U.S. federal copyright cases filed in 2015 took place in federal court in Los Angeles - more than New York or elsewhere). Between 2011 and 2015, 417 cases were brought in Los Angeles by four local printers, all represented by one law firm.
Through May of 2016, one printer has filed 34 lawsuits, on pace to match the 80 filed last year, and ahead of the 2014 pace when 56 were filed — one per week. Attorneys’ fees can typically run $200,000 - $400,000 on top of any award. In other words, the pendulum has swung very far from levels of common sense, so be prepared.
What you can do
Here are some things to consider:
- Start by asking your printer or knitter if the company has a copyright registration of the pattern being considered. Ask to see evidence of “original-work” authorship (either art work or a knitted sample). Where the mill has purchased the design from an art studio or another entity, ask that the sale to you includes a statement that the original copyright is being transferred to you.
- Get an indemnity, in writing, from the mill covering both you and anyone to whom you sell product. This should be included in your purchase order.
- Buy your own copyright infringement insurance. Some policies are expensive but it is a small price to pay to protect you and your customers.
- 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.
- If you are not comfortable with the response to your due-diligence inquiries, then do not buy the pattern!
- Design your own prints.
*This article originally appeared in a newsletter of the California Fashion Association.
Rich Reinis is a litigator and corporate strategist who represents clients from diverse industries, including fashion and manufacturing. He is a founding member of the California Fashion Association. He can be reached at rreinis@thompsoncoburn.com or (310) 282-9411.