By Kaleigh Kemmerly
It’s hard to be a creative in today’s litigious world, and the rise in the number of “trolls” that use the legal system to hold innovation and creativity hostage can make it even harder.
Copyright trolls, largely in the form of textile and fabric companies, are becoming the bane of the fashion industry for a practice popularized over the last decade: They register a number of generic prints or patterns, target fashion companies that might be using them in their designs, and then sue for copyright infringement.
The print designs on garments have received copyright protection in the U.S. since a 1954 Supreme Court case – and are among the few aspects of a garment that are eligible. To be copyrightable, the Supreme Court ruled, they must be independently created and possess a “modicum of creativity.” And that’s a point that’s argued in these cases.
In one recent case, for example, online retailer Zulily was sued by copyright troll Star Fabrics (in Star Fabrics, Inc. v. Zulily, LLC, et al., 17-cv-8358). It won an important early win when one of the plaintiff’s claims was dismissed: the court ruled that, as a matter of law, Star Fabrics could not show substantial similarity between the original aspects of Star’s design and the defendants’ products, as a matter of law.
Over 1,000 copyright litigation cases have been brought by one law firm alone for textile plaintiffs, and mainly in southern California, which today is a major center for the fashion and textile business. The claims can have an expansive reach as U.S. copyright law allows every party involved in the production and sales process to be targeted.
Defendants can have millions of dollars at stake, and short of staying away from patterned fabrics, are smart to put risk management resources to work for them in order to head issues like this off before they happen.
HUB International, through its Fashion IP Shield ™ uniquely offers designers, manufacturers and retailers in the fashion industry the risk management resources necessary to protect them from fabric design and copyright infringement claims.
Kaleigh Kemmerly is the Managing Director of Fashion Industry Solutions for HUB International, Los Angeles, California. She can be reached at [email protected] or (310) 568-7661.