“Copying is rampant in the fashion industry!” the headlines read. And, so what? Is copying allowed, and if not, what are the consequences of infringement of protected works?
Copyrights protect works of authorship. Familiar examples of copyrightable works are novels, songs and paintings, but particularly relevant to the fashion industry is the copyrightability of fabric designs which, like the other types of works, can be original works created by an “author,” i.e., the fabric designer.
However, copyrights do not protect “useful articles.” Apparel (i.e., the piece of clothing itself, not the fabric pattern) is considered a “useful article” because it can provide warmth and act as a body covering, among other uses. Accordingly, the clothing design itself or the pattern of a piece of clothing is not usually subject to copyright protection even though the fabric design can be.
The Unicolors, Inc. v. Urban Outfitters, Inc. line of cases provides an illustration of fashion copyright infringement. As established in that case, Unicolors employs a team of designers to create fabric designs. Here, after purchasing an original piece of artwork, the Unicolors design team redesigned it into an original Flower Design that they registered with the Copyright Office. Later, Unicolors discovered that garments with an unauthorized pattern very similar to the Flower Design were being sold. As such, Unicolors sued Urban and others for copyright infringement.
There are two basic elements for establishing copyright infringement: (1) ownership of a valid copyright of a work and (2) copying of the original constituent elements of the work.
A copyright registration certificate is usually sufficient to provide a presumption of ownership of the work at issue. And, in fact, copyright registration is required in order to file a copyright infringement action.
Here, Urban challenged Unicolors copyright registration by raising various administrative issues with the registration, but the court concluded that any mistakes on the application would not have caused the Copyright Office to refuse registration and Unicolors was ultimately able establish ownership of the Flower Design.
Copying can be shown by producing direct evidence, but direct evidence of copying did not exist in this case. However, copying can also be shown by establishing that (1) a party had access to the work and (2) the party created a substantially similar design.
To establish access to the work, Unicolors needed evidence that Urban had a “reasonable opportunity” to view the work, which is usually provided by showing that the work had been widely disseminated, or by establishing a chain of events from the work’s creation to the party’s access. Here, Unicolors was not able to establish that about 20,000 yards of fabric meant the Flower Design was “widely disseminated,” nor was Unicolors able to provide a chain of events leading to access by Urban. Accordingly, Urban argued on appeal that it could not have “copied” the work if Unicolors could not establish that Urban had access to the work.
However, the Ninth Circuit found that the primary elements of both designs to be “nearly identical” and that “the works are not only substantially similar, but strikingly similar.” As such, even though Unicolors could not show that Urban had access to the work, because the Flower Design was fairly complex and the accused dress pattern was “virtually identical,” the court indicated that it was unnecessary to consider that the accused dress was “the product of independent creation, coincidence, a prior common source or any source other than copying.”
A plaintiff can be awarded greater damages if it can establish that the copyright infringement was willful. Willfulness can be shown by either intentional behavior or merely reckless behavior by the infringing party. While Unicolors was not able to show intentional behavior, the Ninth Circuit upheld the jury’s finding of willfulness, noting “Urban acted with reckless disregard for the possibility that the fabric it sampled was protected by copyright.”