For fashion designers of all scales, copyright protection is a much-needed precaution in this digital age.
That was the message from a foursome of authorities discussing “Parallel Worlds: Copyright, Cheerleaders and Conceptual Separability” at Friday’s Fashion Law Institute Symposium. Moderated by Fordham’s Susan Scafidi, the hourlong discussion explored how U.S. copyright protection for clothing and other “useful articles” is currently limited to conceptually separable elements such as fabric prints and lace patterns. The term also applies to the frequently cited case of Kieselstein-Cord v. Accessories by Pearl, which deemed that Barry Kieselstein-Cord’s artistic belt buckles were closer to jewelry than their utilitarian counterparts.
Afterward, Kieselstein-Cord said many designers don’t pursue copyright protection simply because they are not informed. “They’re not aware of it, because designers, generally speaking, are artists. Most of them don’t have a business background,” he said. “They need someone from the real world to tell them how to protect themselves.”
Kieselstein-Cord said, “In the world of fashion, art and design, the art of the rip-off is very much at hand. They’ll get young artists and designers, and a predatory company will want to rip them off very quickly, make a killing and then pay a small fee. They already know the young designer or artist doesn’t know how to protect themselves or mount a case against them.”
Pointing out the fact that it took him four years to pay off his first lawsuit and he didn’t get any money back, Kieselstein-Cord said he was only earning an annual salary of $27,000 at that time and he was taking on a $9 million or $10 million company. His opponent had free legal counsel while his own legal bills were $175,000. He said, “But I stopped these people dead. And I went on to be very successful based on that win.”
He was joined by Arent Fox’s Michelle Mancino Marsh, Frankfurt Kurnit’s Rachel Kronman and Cowan Liebowitz & Latman’s Tom Kjellberg.
“Copyright protection is a very important thing and they need to teach it in design schools. We’re in a very different world. We’re in a global world where everything is being watched and reaped off the Internet. Any time you send a message concerning a design or drawing, you have to protect yourself. And you are at the mercy of people breaking into your design computers.” Kieselstein-Cord said. “Anybody working on a design should have their own setup where they are fully protected. They can’t afford to fight a big company. It’s very, very difficult.”
In addition to doing a lot of pro bono work, Kieselstein-Cord estimated that he has saved other companies “billions” of dollars by winning his case, which became a seminal one.
Kieselstein-Cord said he relied on fashion spreads from WWD, Vogue and Harper’s Bazaar to illustrate that the belt buckles were not only designed to be worn at the waist, but they were art pieces. Andy Warhol and Eleanor Lambert said they displayed them as such. Kieselstein-Cord also used Helmut Newton-shot photos of models with the belt buckles around their necks. “The presiding judge at the time on that court, the second circuit jurisdiction, was a MoMA boardmember, which really helped. He understood conceptual art.”
“A lot of fashion designers these days are having trouble with dresses. There is a very easy way to remedy this and protect your designs.” he said.
Marsh also emphasized the need for designers to take the initiative with copyright protection. “They can apply and it’s very inexpensive. It’s only when you get a refusal that you really need to have a counsel. There are a lot of attorneys who do this on a reduced rate or on a pro bono basis. There are volunteer lawyers for the arts, and a bunch of organizations including Fordham that do clinics.” she said. “You can go to these attorneys to get their opinions if it is worth appealing or pushing it. Having copyright protection is no different than having a patent or a trademark. It is as important.
Referencing the Varsity Brands v. Star Athletica case (where last summer, a split U.S. Court of Appeals for the Sixth Circuit panel ruled that decorative designs on cheerleading uniforms can be copyrighted), Marsh said that dispute basically comes down to trying to protect “the sweat of the brow and the effort that it put into designing these costumes.” The way she sees it, designers should be proactive about safeguarding themselves from others knocking off their work with copyright protection.
“There is a fundamental misunderstanding about what copyright protects. A lot of people think fashion is not protectable. That is absolutely wrong. There are areas of fashion that are protectable. I have a lot of clients in the footwear industry, accessories industry for copyright, patent, trademark protection [issues.]” she said. “Copyright is one of the cheaper and easier ones to attain. It can be designs on footwear, applied jewelry on footwear — even glassware.”
She said she likes just to go into companies to get designers thinking about what it is that can be protected and how. “Leave it up to the business to decide whether it’s worth protecting but be thinking, ‘Hey, I put a lot of work into this design. I thought about this. I was up all night and the creative spark got me. This is original.’ Protect it. It’s just a matter of getting into that mind-set.”