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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. Defense attorneys respond that the designers have improperly copyrighted generic art that has been used for years. During the past five years more than 50 companies have been sued in Los Angeles for copyright infringement. Defendants include such well-known retailers as Target Corp., Nordstrom Inc., J.C. Penney Co., and Wal-Mart Stores Inc. Many of these companies have settled; few have gone to trial. But more suits are on the way. And this wave of litigation is becoming a big business for lawyers. “More and more people and companies are filing copyrights on their patterns and designs,” explains 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 in 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 suit filed against the company over design patterns. He also handled the case for the retail defendants, which included Saks Inc., Kohl’s Corp., and Burlington Coat Factory Warehouse Corp. REPEAT, REPEAT, REPEAT The rise in copyright claims over textile designs comes as U.S. companies are losing business to suppliers in other countries, particularly in Asia. Though the counterfeiting of clothing is not new, more than 90 percent of the clothes sold in the United States now are imported, says Nate Herman, director of international trade for the American Apparel and Footwear Association. About a decade ago, more than 50 percent were still made in America. Improvements in technology have also allowed printers to re-create designs that bear remarkable similarities to the originals. Infringed designs 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,” says 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 argue that textile designers are copyrighting patterns that are just 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,” says Levy. “It used to be that knockoffs were a normal part of the business. Now the rules are changed.” And Levy cautions, “The question really is, Are these really original patterns?” The vast majority of the suits in Los Angeles have been filed by two fabric designers: a startup called L.A. Printex Industries Inc. and Samsung America Inc., which has a textile-design division based in Los Angeles. In January, Samsung settled a copyright case against Forever 21 Inc. The suit alleged that several of Forever 21′s suppliers illegally copied four of Samsung’s copyrighted designs and sold them to the retailer. Although the terms of the settlement were not disclosed, Samsung sought $150,000 for each infringement. Samsung was represented by Thomas Kent, a partner at Lee & Kent in Los Angeles. Lawyers and industry experts warn that more suits are on the way. “The lawsuits are not just from these two,” says Ilse Metchek, executive director of the California Fashion Association, which is based in Los Angeles. Lawyers, she says, “can make a living on the amount and proliferation of these lawsuits.” A CHAIN OF LIABILITY 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, says Doniger, the primary lawyer for L.A. Printex Industries. Designers create and sell their designs to fabric printers, which convert the artwork into fabric and 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 contends that each company involved in the process of illegally making money from copyrighted designs shares liability, whether it knows of the infringement or not. Doniger, who had brought only a few copyright cases in previous years, has filed at least 18 lawsuits on behalf of L.A. Printex Industries. About 30 companies have settled, he says. Terms of those settlements are undisclosed. In general, Doniger says his settlements range from $20,000 to $750,000 apiece, depending on how many pants and shirts were sold with the copyrighted designs. He says he or his clients initially find defendants by conducting raids of the retail stores or by investigating how many stores sold particular infringing clothes. Next, says Doniger, he finds out how many garments were sold and whether they ended up on the sales rack. Settlement figures, he says, are “all a balance of whether we have timely registration, the number of garments sold, and the profit margin at retail.” Doniger says his clients are often small design shops with limited funds. In fact, he takes most of his cases on a contingent basis with a retainer fee. Michael Baum, of counsel to Los Angeles-based Resch Polster Alpert & Berger who represented the Buckle Inc., a retailer, and Stoney Apparel, a manufacturer, in one settled case, declines to discuss settlement details. But he says the case involved a pattern of two interlocking ellipses that appeared on blouses sold at the Buckle. “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,” says Baum, adding that Prada had developed the pattern years earlier. Baum notes that he has been representing textile and apparel clients for 30 years in copyright claims, and 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 says. “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, observes Megan Gray, a copyright lawyer at D.C.’s Roylance, Abrams, Berdo & Goodman. “The awareness has grown as they have been pummeled more and more by overseas knockoffs,” says Gray. “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.”
Amanda Bronstad is a Los Angeles-based reporter for the National Law Journal , an ALM publication in New York where this article first appeared.

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