X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Los Angeles-A small group of plaintiffs’ firms in Los Angeles are carving out a new area of copyright law that protects creative artists whose work appears not in movies and books, but on shirts and skirts. In dozens of suits filed in U.S. District Court in the Central District of California, lawyers claim that retailers and their suppliers are filling stores with low-cost knockoffs that infringe on the copyrights of U.S. fabric design houses, which create patterns on blouses, dresses and other articles of clothing. Defense attorneys claim that the designers have improperly copyrighted generic art that has been used for years. More than 50 companies have been sued in Los Angeles during the past five years for copyright infringement, including retailers such as Target Corp., Nordstrom Inc., J.C. Penney Co. Inc. and Wal-Mart Stores Inc. Many of those companies have settled; few have gone to trial. But more suits are on the way. In January, new suits were filed against Mervyns LLC and Ross Stores Inc.; another suit was reinstated against Charlotte Russe Holding Inc. Big legal business The wave of litigation is becoming a big business for lawyers. “More and more people and companies are filing copyrights on their patterns and designs,” said Stanley Levy, a partner at Los Angeles’ Manatt, Phelps & Phillips who represents fabric companies and retailers in litigation. “There are lawyers looking to specialize in this area. They have some intellectual property experience and litigation and want to expand their practice.” Levy, whose clients include Guess? Inc. and Tommy Hilfiger USA Inc., represented Design Zone Inc., a Los Angeles fabric manufacturer, in a recent copyright lawsuit filed against the company over design patterns. Girl Mania Inc. v. Design Zone Inc., No. 8:05cv00485 (C.D. Calif.). He also handled the case for the retail defendants, which included Saks Inc., Kohl’s Corp. and Burlington Coat Factory Warehouse Corp. The rise in copyright claims over textile designs comes as U.S. companies are losing business to suppliers in other countries, particularly in Asia. While counterfeiting clothing is not new to the industry, more than 90% of the clothes sold in the U.S. now are imported, said Nate Herman, director of international trade for the American Apparel and Footwear Association. About a decade ago, more than 50% were still made in America. Also, improvements in technology have allowed printers to recreate designs that bear remarkable similarities to the originals. As a result, infringed designs and patterns have become so widespread that U.S. designers have turned to the courts to protect their business. “There is a real problem here, and we’re taking the stand for the little guy,” said Stephen Doniger, a plaintiffs’ attorney at the Doniger Law Firm in Culver City, Calif., who has brought many of the suits on behalf of fabric designers. “The more these suits become commonplace, the more functional the industry will be overall. We need to create a culture of respecting intellectual property rights.” But defense lawyers say that textile designers are copyrighting patterns that are too common to be distinguishable, such as polka dots, Christmas trees or flowers. “Design houses are taking the time to copyright every one of their designs,” Levy said. “It used to be that knockoffs were a normal part of the business. Now, the rules are changed.” He cautioned, “The question really is, ‘Are these really original patterns?’ “ Most of the lawsuits have either settled or are pending. Two L.A.-based fabric designers have filed a vast majority of the suits in Los Angeles: A startup designer called L.A. Printex Industries Inc. and Samsung America Inc., which has a textile design division based in L.A. In January, Samsung settled a copyright case against Forever 21 Inc. that involved several of its suppliers. Samsung America Inc. v. Forever 21 Inc., No. 2:04cv10419 (C.D. Calif.). The suit, before U.S. District Judge George King, alleged that several of the retailer’s suppliers illegally copied four of Samsung’s copyrighted designs and sold them to Forever 21. Although the terms of the settlement were not disclosed, Samsung sought $150,000 for each infringement. Samsung’s lawyer, Thomas Kent, a partner at Lee & Kent in Los Angeles, did not return calls seeking comment. In November, Kent filed another copyright case on behalf of Samsung America against Charlotte Russe. Samsung America Inc. v. Charlotte Russe Holding Inc., No. 2:05cv08111 (C.D. Calif.). The case is pending before U.S. District Judge Percy Anderson, where it is in discovery. Complicating factor: liability Lawyers and industry experts say that more suits are on the way. “The lawsuits are not just from these two,” said Ilse Metchek, executive director of the California Fashion Association, which is based in L.A. Lawyers, she said, “can make a living on the amount and proliferation of these lawsuits, not just from Printex.” Assessing liability in textile copyright claims is complicated by the fact that so many companies are involved in the production and supply chain of clothing, Doniger said. Designers create and sell their designs to fabric printers, or companies that convert the artwork to fabric, which sell the patterns to clothing manufacturers. Manufacturers, many of which outsource their work to smaller shops, sell their finished products to retailers. Every link in that chain has been sued in recent copyright claims. Doniger, the primary lawyer for L.A. Printex Industries Inc., said that each company involved in the process of illegally making money from copyrighted designs shares liability, whether they know of the infringement or not. So far, Doniger, who brought only a few copyright cases in previous years, has filed 18 lawsuits on behalf of L.A. Printex. About 30 companies have settled for undisclosed sums, he said. Among the most recent were suits settled in January by The Buckle Inc.- L.A. Printex Industries Inc. v. Buckle Inc., No. 2:05cv0003, (C.D. Calif.)-and Target Corp.: L.A. Printex v. Target, No. 2:04cv06824 (C.D. Calif.). Terms of those settlements are undisclosed. In general, Doniger said that his settlements range from $20,000 to $750,000 apiece, depending on how many pants and shirts were sold with those designs. He said that he or his clients initially find defendants by conducting raids of the stores or investigating whether the same infringing clothes were sold at multiple stores. He next finds out how many garments were sold and whether they ended up on the sales rack or not. Settlement figures, he said, are “all a balance of whether we have timely registration, the number of garments sold and the profit margin at retail.” Still, he admitted that his clients are often small design shops with limited funds. In fact, he takes most of his cases on a contingency basis with a retainer fee. Michael C. Baum, of counsel to Los Angeles-based Resch Polster Alpert & Berger who represented The Buckle and Stoney Apparel, a Los Angeles manufacturer in the case, declined to discuss the details of the settlement. He said that the case involved a pattern of two interlocking ellipses that appeared on blouses sold at the Nebraska-based clothing retailer. “We believe the design was in the public domain, and we had no reason to believe we were infringing on anybody’s intellectual property rights or design rights,” he said, noting that Prada developed the pattern years earlier. Baum said that he has been representing textile and apparel clients for 30 years in copyright claims, but most were settled through cease-and-desist letters or out of court. “What’s unusual here is the volume of lawsuits that were filed,” he said. “There are so many of these I have a spreadsheet.” In many ways, textile designers are simply confronting an old problem with a new solution, said Megan Gray, a copyright lawyer at Roylance, Abrams, Berdo & Goodman in Washington. “The awareness has grown as they have been pummeled more and more by overseas knockoffs,” said Gray, who represents plaintiffs and defendants in copyright cases. “When nobody was violating their rights, they had no need of understanding all their legal rights. Now that they’re inundated with all this infringement, many of them have obtained legal counsel-and they should.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.