The narrow question the U.S. Supreme Court recently answered for the fashion and retail world avoided the epicenter of the contentious, complicated landscape of textile copyright law itself.
The designs often are made up of redundant-by-definition patterns consisting of finite elements and shapes. Determining whether an infringed work is original, “substantially similar,” or likely to have been seen by the alleged infringer presents twists different from other media.
The high court Feb. 24 settled a question of copyright registration validity, finding unintended legal errors don’t void registrations. That restored an infringement award granted by a jury to fabric designer Unicolors Inc. from fashion company
But companies that rely on textile copyrights still face several underlying issues .
There’s “less established groundwork” for judges evaluating fabric designs than in a typical fair use or originality analysis, copyright attorney Jason P. Bloom of Haynes and Boone LLP said. That means the outcome of an analysis depends heavily on the judge’s interpretation.
“I think what makes it uniquely difficult is just the amount of stuff that’s out there, and the difficulty of coming up with things that are going to both be marketable and that haven’t been done in some way before,” Bloom said. “There’s only so much you can do with lace designs.”
Fashion and retail groups that were disappointed by the ruling said it provides another shield to entities that often register large volumes of copyrights primarily to use them in litigation against alleged infringers.
“I don’t know if it’s a setback, but it isn’t progress,” said fashion and retail attorney Deborah Greaves of Withers Bergman LLP, who helped write a brief for the high court backing fashion company H&M against Unicolors.
“The fashion industry is plagued by trolls over textiles for decades,” Greaves said. “Innocent companies, where its questionable whether the design is infringing, have to settle because of a presumption of validity in registration.”
Fashion law professor Susan Scafidi of Fordham University disagreed that textile copyright litigation is as much of a mess as some claim.
Scafidi said many cases involve clear copies. She also downplayed the prevalence of questionable claims over similar, but not identical or especially distinctive designs where a judge’s analysis falls in a gray area.
“Think of the tens of thousands of fabric printings made every year, and how few of them are accused of infringing,” Scafidi said.
The sheer volume of fabrics presents multiple problems. For one, there is no collective database of fabrics, and tracking who owns rights to a particular design can be tricky, attorneys say. Databases could help a company avoid infringing existing designs or recognize a supplier didn’t create a fabric.
Once infringement is alleged, a database could also help attorneys find similar designs to show claimed originality wasn’t actually that creative and deserves thin protection, meaning the infringer’s work would have to be nearly identical. Instead attorneys have to rely on clients and their knowledge of the industry to help track down similar looks, Bloom said.
Just because a similar pattern exists doesn’t mean a work infringes, as infringement requires exposure to the work. But lack of access can be difficult for defendants to prove, Greaves said.
“How do you prove whether or not they had access? Unicolors said well we put it in our show room, and in a book. But how many buyers go through them?” Greaves said. “That’s just not enough to me.”
Greaves said even if a fashion company is being diligent, it can be liable for infringing the copyright of a fabric that a supplier, especially one abroad, falsely claimed it created or licensed it.
Scafidi, however, said fabric mills are generally within their rights to protect their designs that they intend to license.
The vast world of past designs and potential for litigation has a positive side effect, Scafidi said.
“If anything it does what it’s supposed to do: push creativity forward,” Scafidi said. “If you’re concerned something might be too similar to something else, create something more unique.”