Question on fabric copyrights.

I've received some questions and thought I would take some time to answer them in a series of short blog entries.

Lara asked a question on fabric copyrights.

I wonder if you can help!?  I came across your blog and a similar thing happened to me - I make bags and was sold fabric for the bags that infringe on a large company's design rights.  I have now found some different fabric and am wondering how I can double check that it is not copyrighted to anyone - do you know how I can check this?

In the US, fabric that is sold is subject to the First Sale Doctrine, meaning you can use it as you choose. The exception to this is if the image contains licensed images or trademarks. An example of this would be a team logo or recognized cartoon character. Though even the use of fabric with licensed images is up for debate.* This right is currently being challenged as we speak at the US Supreme Court, which if the judges rule a certain way threatens this right. It would probably upend business as we know it.

Anyway, the current trend among textile surface designers is to license their designs to fabric converters (such as Michael Miller, as an example) while retaining all their copyrights. They seem to be ok with personal, home use of the fabric printed with their designs, but they don't like their designs being used on commercially made products without their permission. The idea is certainly in conflict with the First Sale Doctrine.

There have been instances of copyright and trademark infringement on fabric in the US. In those cases, the design on the fabric was copied and printed outside the distribution and control of the original designer and/or fabric manufacturer.

I think the situation presented in this question is a bit complex and I don't know enough of the details to offer much help. I think Lara may be from the UK? In which case there are different issues at play. The UK and European Union have seized on the idea of design rights and patents. In that case, a fabric print in combination with a specific product can be protected. I don't know how you can check on the copyright status or design rights of a particular print. You would probably have to rely on the integrity of the fabric supplier. In any event I think it would be difficult to ever know for sure if something was ok to use.

In the US, the answer is similar. Fabric prints have traditionally not been registered with the US copyright office. Designs, as in completed items like a dress, are not protected. So, you must rely on the integrity of the fabric supplier to supply fabric that is available for the use you intend. Intellectual property lawyers may be able to help, but I don't how many are versed on the complexities of the textile and fashion industries. Unfortunately, if the above trends continue (and if certain legislation is passed) the need for an IP lawyer will become a requirement for designers.

*If you can look past the hyperbole of the Tabberone site, they do make some interesting points.

More on copyrights - this time on fabric

I've wanted to write a blog entry on the latest state of copyright and intellectual property issues in the fashion and sewn products business for a while. I've been watching the assertions of copyright restrictions by indie pattern designers (sewing and knitting) and the appearance of copyright restriction on fabric selvages. I've struggled with how to approach the topic because it can become quite heated very quickly.

As a fashion designer, I like to use printed cotton fabrics in my girls dresses. Over the last several years, I've been watching the rise and popularity of certain fabric print lines and their designers. I've loved the prints they are producing because they have hit upon a formula which is constantly fresh and inspiring. Long gone are the sweet floral rose buds that were so typical for infant clothing. Now there is an explosion of modern, colorful designs that are mixed and matched like crazy.

In the fashion industry there is an assumption that fabric available for sale can be used to make commercially sold products*. We don't usually take the time to ask for permission from every vendor and copyright holder before we design a season. To do so would bog down the process considerably. And let's not forget the concept of the first sale doctrine, which in the United States says the creator of an object loses control of it once the item has been sold**. Even so, I went so far as to ask permission on one fabric design a few years ago because it was designed by a well known scrapbook paper designer. This designer was known to go after individuals who used her scrapbook products to make new products to sell. But when I asked the fabric vendor, they thought I was crazy - of course I could use the fabric for a commercial product.

Well it appears with the rise of celebrity fabric designers***, that is changing. I've been reading of the recent case involving Kate Spain and C&T Publishing/Emily Cier. I won't rehash the whole thing but you can read a good analysis at The Free Motion Quilting Project. With the resulting chaos and ill will that is now floating around the quilting industry, you can see how quickly creativity can be curtailed.

This one situation throws chaos into more than just quilts. There are many childrens clothing designers, accessory makers, and manufacturers who use fabrics from celebrity fabric designers. What's to be done there? I can assure you that the fashion industry as a whole will not stand for it. There is a cost associated with printing up fabric, but it is not as hard to come up with our own designs and print our own fabric as it has been in the past. Those fabric designers need to be careful that they don't alienate the very customers they seek to serve by limiting what can done with the fabric they create. They may loose the very income they seek to protect.




*Generally speaking, it is suggested that a fashion designer not use a fabric print that contains a licensed character such as Mickey Mouse. Doing so crosses into trademark territory and Disney will come after you. There are some designs which are so distinctive that there can be no doubt that the design refers to another brand. So while the first sale doctrine may apply, why would you want to go there? In addition, it is copyright infringement to copy an existing fabric design and print it yourself. Though that gets into murky water because there are many, many fabric designs which are technically in the public domain, though which is and is not public domain is difficult to determine.

**Those statements printed on fabric selvages that limit usage to personal use are probably not legally binding due to the first sale doctrine. Though I'm certain some individuals may actually try to enforce it with lawsuits and threats anyway. If you see it and you have a concern, then just don't buy it. And as mentioned above, some companies will actually come after you.

***Please don't think that the usage of the terms celebrity fabric designers is disparaging. On the contrary, these fabric designers deserve the recognition that comes with their talent. The term celebrity simply refers to their popularity and the expansion of their brand across multiple product lines. Just as there are celebrity chefs, actors, and what not, there can be celebrity fabric designers.

Deciding on whether to file a patent on a new child's product design or not

2019 Note - The amazon affiliate link to the nursing cover above is from a different manufacturer then the one described below. I do not know the current status of the Bebe Aulait patent or protection efforts. Regardless there are dozens of similar ideas on Amazon and other places.

I don't know why, but some baby clothing and accessory designers are under the impression they need to go to extremes to protect their product. This includes patent, trademark, and copyright protection. Maybe it is the inner paranoia of being copied. I don't know. It seems that there are A LOT of baby/child related products that have been patented. Why? Some products are truly patent worthy but most are not. Regardless, patents are only worth as much as the effort used to protect the patent. In other words, it may cost you more to protect your patent than the money you make off it. That isn't true for all products, but for many. For many design entrepreneurs it will be a waste of time and money. There are few processes or ideas that are unique in this industry. Most designs are just reinterpretations or a new combination of existing ideas.

There are three types of patents:
1) Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;
2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and
3) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

In addition:

Even if the subject matter sought to be patented is not exactly shown by the prior art, and involves one or more differences over the most nearly similar thing already known, a patent may still be refused if the differences would be obvious. The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention. For example, the substitution of one color for another, or changes in size, are ordinarily not patentable

I don't know under which of the three types of patents that Bebe Aulait has filed their patent for their Nursing Cover and I am not sure their claim is truly new or novel. (Bebe Aulait purchased the invention from the inventors and have become the new patent asignees). The idea has been around for a long time (one friend claimed she used one 20+ years ago). I think their claim as an invention centers around the addition of boning (stiffener) in the neckline of the apron that helps hold the apron away from the body. One interesting part of the patent is end caps on the boning. I haven't seen end caps for boning before and I could get behind that one small aspect of the patent. Have any of you seen endcaps for boning before?

In any event, there are some problems with the patent and I think it could be challenged. But who has the time and money. The nursing cover is a glorified apron.

Rumor on the street is that Bebe Aulait is enforcing their patent pending product in the same vein as Taggies, which I have blogged about before. It calls into question the value of their patent since it is so easy to copy. Not that I am encouraging copying. If you do, you will receive a threatening "cease and desist" letter from a lawyer.

I don't know what it takes to challenge a patent. I am sure at some point an IP lawyer will have to be employed and they are very expensive.

Trademarks are issued to brand names. Like patents, it creates a property right over a brand name. I will write about a trademark problem with onesies (owned by Gerber) at a later date. The next problem is copyrights. Taggies claims copyright protection on their products. Such a claim is not valid because there is currently no copyright protection on clothing or textile items. Copyright protection can apply to textile designs such as fabric prints. A measure has been in the works to extend copyright to apparel but is apparently stuck in committee. Such an extension of copyright would have a devastating affect on the apparel industry in the US.

What do you think?

Thanks to MyPreciousKid and Trinlayk for bringing this to my attention.