Can't copyright/trademark fashion?

[Silas Sparkhammer]

Maybe two ULs for the price of one...

The story as told by Joseph Michael Linsner, comic book artist and creator of "Cry for Dawn," is that the producers of StarGate: SG-1 swiped a dress design from one of his paintings, for use in the tv show. I've seen the episode, and I've seen the original painting, and, yep, that's the same dress. Linsner writes that he complained, threatened to sue (perhaps sued? I don't know) and won. Later, when the show disposed of the actual physical dress, Linsner bought it at an auction. Closure...

UL no. 2: I was mentioning this all to a friend, someone who knows the art business pretty well. He said, "It is impossible to copyright or trademark fashion designs." He said that this is why, the moment a new design is paraded at a fashion show, knock-offs appear.

Is this correct? My understanding was that knock-offs always had one or two key differences, so that they were never exactly the same. (And...in the Linsner/StarGate affair, no differences were visible.) I had understood that, if the knock-offs were *not* sufficiently distinct, the original designers sued the makers for counterfeiting. Otherwise, why would we have news stories about counterfeit Gucci purses, Rolex watches, etc.? If it were sufficient to sell the same design with a different name ("Gnucci?") then there would be no legal recourse, right?

Silas (not planning to swipe a YSL design any time soon)

[AnglRdr]

Knockoffs are likely to be different because they are approximations of the original designs, more so that just having one or two changes arbitrarily incorporated into the garment so it isn't copied.

I don't know what the specific rules about copyrighting designs is, though. My brain tells me a pattern could be copyrighted and a technique might be able to be patented, but when it comes down to it, I just do not know specifically.

[KKHB]

Originally Posted by Silas Sparkhammer

My understanding was that knock-offs always had one or two key differences, so that they were never exactly the same. (And...in the Linsner/StarGate affair, no differences were visible.) I had understood that, if the knock-offs were *not* sufficiently distinct, the original designers sued the makers for counterfeiting. Otherwise, why would we have news stories about counterfeit Gucci purses, Rolex watches, etc.? If it were sufficient to sell the same design with a different name ("Gnucci?") then there would be no legal recourse, right?

Now I am curious about this too. I don't see how a design could be copyrighted or at least how the copyright could be preserved in practice. After all, I could buy a designer dress (if I could afford to) pull it apart and use the dress itself as a pattern to sew myself a whole closet full of copies. I can't see law enforcement or any authority stopping me on the street or prosecuting my home-sewn clothes.

My understanding of designer knock offs- the illegal kind at least- and counterfeit products is that the problem isn't that they have the same design or the same look as the Gucci purses, or Rolex watches but that they have the same logo, the same trademark, etc. and are often being sold as the real thing.

I could be wrong, but I believe it would be fine if I manufactured and sold a watch that had the same essential design as a Rolex as long as I did not call it one and did not use their trademarks etc. So a KKHBex watch with the huge, pink (naturally) KKHB logo on the face that otherwise looks like it might be a Rolex would be fine, but selling a Rulex (using the same font etc. to appear to be the Rolex name) would be more iffy.

[Aimee Evilpixie]

I can sew and sell replicas of famous designs all I want. I cannot, however, pass those replicas off as the real thing. That's the difference.

[James G]

Under UK law, protection of designs occurs under trademark law. I imagine a similar protection exists under US law.

[Silas Sparkhammer]

Thanks for the answers! I think my friend must have been mistaken; what he said implied that there isn't even an attempt under law to protect fashion designs, and I'm sure there has to be. It's got to be a nasty thing to test in court: how similar can one design be to another before it is an infringement? I wouldn't want to be the judge who has to decide such a thing.

(And now I really want a KKHBex watch!)

Silas (rumored to be right twice a day)

[Troberg]

You can certainly protect a trademark for a design. Copyright usually only applies to verbatim copies, so if you make a dress of, say, a different length but with the same basic design, you'll probably be safe.

[mags]

Considering the enormous amount of work involved in actually making a working pattern (and then costume) off of a drawn (or painted) design, I can't imagine why simply drawing a dress should give you any rights to a potential dress made to look like that drawing. If there was an actual pattern (or logo, or if the picture was printed onto a t-shirt for example) that was copied, that would be infringement. I don't know how easy it would be to prosecute, however.

You have rights to your own work, which in your friend's case was a painting, not a pattern, not an actual dress. You can't copyright ideas.

In the words of the actual US Copyright Office:

Ideas, Methods, or Systems are not subject to copyright protection. Copyright protection, therefore, is not available for: ideas or procedures for doing, making, or building things; scientific or technical methods or discoveries; business operations or procedures; mathematical principles; formulas, algorithms; or any other concept, process, or method of operation.

The painting of the dress established the dress as a 'concept.'

Copyright protection extends to a description, explanation, or illustration of an idea or system, assuming that the requirements of the copyright law are met. Copyright in such a case protects the particular literary or pictorial expression chosen by the author. However, it gives the copyright owner no exclusive rights in the idea, method, or system involved.

The painting was the particular pictorial expression chosen by the author, but it gives him no exclusive rights in the idea.

[AnglRdr]

Originally Posted by mags

Considering the enormous amount of work involved in actually making a working pattern (and then costume) off of a drawn (or painted) design, I can't imagine why simply drawing a dress should give you any rights to a potential dress made to look like that drawing. If there was an actual pattern (or logo, or if the picture was printed onto a t-shirt for example) that was copied, that would be infringement. I don't know how easy it would be to prosecute, however.

You have rights to your own work, which in your friend's case was a painting, not a pattern, not an actual dress. You can't copyright ideas.

In the words of the actual US Copyright Office:



The painting of the dress established the dress as a 'concept.'



The painting was the particular pictorial expression chosen by the author, but it gives him no exclusive rights in the idea.

Perhaps not copyrighting, but a procedure can be trademarked, no?

[RealityChuck]

Currently, in the US, there is no trademarking of fashion designs.

According to the US Trademark office:

A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.

Note that it refers to printed material ("design" as in, say, the McDonald's arches). It does not apply to an actual physical object.

Bills have been introduced to trademark fashion design, but the most recent -- in the 110th Congress, 2007-2008 -- never even got to the hearing stage. It doesn't look like Congress has had it reintroduced this year, and since it also failed to get out of committee in the 109th Congress, they're probably in no hurry.

As for knockoffs, they are illegal if the pass themselves off as the original, or if the logo is used (since that is trademarked).

[mags]

Originally Posted by AnglRdr

Perhaps not copyrighting, but a procedure can be trademarked, no?

No.

I believe a procedure, if specific enough and different enough can be patented. But a painting of a dress is not even a procedure. It is an original work, covered by copyright, but only in and of itself - the image.

eta: aha, we finally get down to the nitty gritty: according to the US Patent and Trademark office,

2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture

Unlike copyright, a patent is not immediate upon creation, you have to go through the process to obtain a patent. In fashion, because it changes so quickly, it would be pointless to actually patent designs, because by the time you were granted the patent, the knockoffs would already have made their money and moved on to the next new thing.

I'm pretty sure, anyway, that a picture would not be sufficient as a design description for a patent. An actual dress pattern, probably, but once again that is already covered by copyright.

[Troberg]

Originally Posted by AnglRdr

Perhaps not copyrighting, but a procedure can be trademarked, no?

Trademarks are used for product names, company names and logos. It's all about how the product is identified, not what it is.

Example: Firefox is a trademarked name, and the logo is trademarked, but the product itself is protected by copyright (yes, GPL is also a copyright based protection). The trademark protects Firefox from, say, Microsoft creating their own web browser and naming it Firefox and using the Firefox logo to identify it. Copyright prevents Microsoft from taking the Firefox source code and use it to make their own browser (unless the GPL requirements are respected).

Clear?

It's probably a bit more problematic when the product is the identification. Say, for instance, that I had a theme song, written by Ennio Morricone, which was played whenever I entered a room. That theme song would both be a trademark (as an "audio logo") and a copyrighted work. Another problem would be that when I wake up in the morning, I'm not cool enough to have a theme song by Ennio Morricone.

[Cervus]

I looked at some sewing patterns I have handy, and while the packaging has a copyright notice, it's hard to tell if the copyright applies to the actual pattern or just to the package design and written instructions. The actual pattern pieces have the company name and design number written on them, but no trademark or copyright symbol.

[KKHB]

Originally Posted by Silas Sparkhammer

(And now I really want a KKHBex watch!)

Awesome! I already have a market. Now I just need to learn how to design and manufacture them.

Originally Posted by Cervus

I looked at some sewing patterns I have handy, and while the packaging has a copyright notice, it's hard to tell if the copyright applies to the actual pattern or just to the package design and written instructions. The actual pattern pieces have the company name and design number written on them, but no trademark or copyright symbol.

I think (and as always I could be wrong) that the copyright is for that particular pattern and set of instructions- so photocopying it then selling it as your own (etc.) would be right out.

But what I have heard about actual patterns is the same as recipes; the exact wording of the instructions and the compilation of cookbooks can be copyrighted but the actual recipe (list of ingredients and your own wording of what to do with them) cannot be. So again photocopying a cookbook would be wrong (copyright violation) but passing out the recipe (again possibly in different words) would not be.

For fashion that would mean that tracing the pattern at the store would be wrong, but looking at it, then creating your own from memory might not be. Looking at the finished product and figuring out how to do it without buying the pattern wouldn't be a violation either and would be impossible to prosecute if it were.

[snapdragonfly]

Originally Posted by mags

(snip)You have rights to your own work, which in your friend's case was a painting, not a pattern, not an actual dress. You can't copyright ideas. (snip)

My understand of how it works, which is based on what my dad told me, which he learned when he was working on marketing and patenting a couple inventions of his:

That's correct, you can't really copyright an idea.

If a designer makes a short red sleeveless dress with black feathers around the neck and a ruffle at the skirt, I can actually make and sell that exact same dress, because s/he can't copyright red, or sleeveless, or feathers, or any combination. What I can't do is copy hir name and hir logo/trademark design, because those things are protected by copyright. If the designer had their name plastered all over the fabric, I couldn't create a fabric exactly like that with hir copyrighted name, though.

Now if I were to invent a new type of sewing gadget, that was unlike existing machines, that created some kind of ruffle or something that had never been done before, I could patent that gadget. If someone else came up with a completely different gadget that made a similar ruffle, I think that sort of thing would be arguable and probably end up in court as to ownership of the actual new type of ruffle - I'm not sure.

[snapdragonfly]

KKHBF

For fashion that would mean that tracing the pattern at the store would be wrong, but looking at it, then creating your own from memory might not be. Looking at the finished product and figuring out how to do it without buying the pattern wouldn't be a violation either and would be impossible to prosecute if it were.

Go through McCalls, Simplicity, Butterick, etc pattern books and quite often there will be a few patterns that are almost exactly the same in all of them. Either something very classic such as little A-line children's sundresses, or a Marilyn Monroe type halter dress, or a straight skirt, or else a version of the latest trend such as a bubble skirt.

Sometimes the patterns will be virtually identical and sometimes there will be slight construction differences that unless you were an experienced sewer you might not pick up on. But I don't think the differences are due to a concerted effort not to "copy" anyone else, I think they are just due to the preferences of the pattern designer. Or possibly because they already have the same exact thing existing way back from 1967 and they are just updating the illustration slightly to look current, which I suspect happens from time to time. heh.

[Silas Sparkhammer]

I've been trying to find internet notes on the lawsuit, and the only mention is one offhand remark in a discussion board (similar to ours here!) on linsner's home internet page. He wrote about the story in one of his comic books -- and, while I definitely have it somewhere in my collection, the word "somewhere" takes on Schroedingeresque proportions. (I know it isn't moving, so its location could be dang near anywhere.)

Is it possible that his suit was based on copyright infringement of the image of the dress, considering that it was used in a tv show, not sold in a store as an actual fashion item? The same would apply, for instance, to a lot of superhero costumes: the image, as such, is protected, and I can't make a copy to sell.....

Can I? What distinguishes, say, the Green Lantern union suit from snapdragonfly's "short red sleeveless dress with black feathers around the neck and a ruffle at the skirt?" snapdragonfly says I can market the latter in stores, but I'm pretty doggone sure I can't market the former. Is it the characteristic logo on the chest? I'm pretty sure that if I replaced that logo with, say, my avatar picture or some other design that is mine alone, I still wouldn't get away with marketing such a costume...

I'm definitely missing some vital point of law!

Silas

[snapdragonfly]

Originally Posted by Silas Sparkhammer

What distinguishes, say, the Green Lantern union suit from snapdragonfly's "short red sleeveless dress with black feathers around the neck and a ruffle at the skirt?" snapdragonfly says I can market the latter in stores, but I'm pretty doggone sure I can't market the former. Is it the characteristic logo on the chest?

I think so. I think it's the logo. Also, if someone was to make a painting or drawing of that dress, or even photo, that piece of artwork *would* be protected. Just as if it were a painting or photo or drawing of something as mundane as a cat. It's not the thing in the image that's protected, it's the image itself - you can't photocopy or copy it directly in any other way and sell that particular image. It's the image of the item, not the item. ~ Now if the item in the image had a copyrighted logo on it, that's something I'm not sure about! But I imagine a lawyer would know. I think you would have to have permission to use a copyrighted name or logo or trademark in your image if you wanted to use it for commerical purposes.

I'm pretty sure that if I replaced that logo with, say, my avatar picture or some other design that is mine alone, I still wouldn't get away with marketing such a costume...

~ I don't know - but I think actually you could. Of course when you by a Green Lantern or Superman costume in the stores under legal circumstances, they'll be officially "licensed" by the holder of the copyright. I don't know if you could make, for example, a Superman costume and replace the diamond shaped S thingie with an octagon shaped D or something else and get away with it - there's an obvious Superman reference but they don't own the rights to tight blue leotards and capes with a logo on the front. That sort of thing might end up in a lawsuit with a judge to decide if it's copying or not. I would lean towards not.

I'm definitely missing some vital point of law!

It can be a bit vague even to the experts, from what I understand, which is one reason perhaps there's a lot of lawsuits and intellectual property lawyers out there.



I might be wrong and I'm not a lawyer and don't play one on tv either, but this is what I understand of it from what my dad told me and also from my own research concerning my own artistic endeavors and designs.

[snapdragonfly]

Perhaps Nolo.com might have a topic that specifically addresses your question - I didn't read all of them but I did read one that sort of, I think, addresses your question. Perhaps there's a closer match in there too.

QUESTION:


I gave a company an idea in writing. It said it was not interested. Then it ended up making a similar product -- some minor changes, same name -- and selling it in many stores. What can I do?


ANSWER:


What happens next depends on two things: (1) whether the idea is protectible, and (2) what the arrangement was between you and the company when you disclosed the idea.

First things first. Generally an idea, by itself, is not protectible. For example, an idea to protect a car by locking a metal bar to the steering wheel is not protectible. But that same idea, when expressed in a drawing or prototype that demonstrates the unique way this invention works, may be protectible under patent laws. Likewise, an idea to create characters that transform into superheroes is not protectible, but the same idea as graphically depicted in the Mighty Morphin Power Rangers is protectible under copyright law. Therefore, you must determine if you expressed the idea in a manner that is protectible.

If your expression of the idea is protectible, then you must also discern how similar your work and the company's work truly are. As a very general rule, the analysis focuses on whether the two works are "substantially" similar.

link to that question: http://www.nolo.com/article.cfm/Obje...8/310/119/QNA/

link to general faqs; http://www.nolo.com/articleByCat.cfm...3ECCF6BBD87E32

also interesting to note the differences in the terms.

What's the difference between patents and trademarks?

Patents allow those who create inventions to keep others from making commercial use of the inventions without the creator's permission. Trademarks, on the other hand, are not concerned with how a new technology is used. Rather, they protect names of products and services, logos and other devices -- such as color, sound and smell -- that are used to identify the source of goods or services and distinguish them from the competition.

Generally, patent and trademark laws do not overlap. When it comes to product design, however -- say, the design of a piece of jewelry or a distinctively shaped musical instrument -- it may be possible to obtain a design patent on the ornamental aspect of the device (as distinguished from a utility patent for the invention, itself), while invoking trademark law to protect the design as a product identifier. For example, a surfboard manufacturer might receive a design patent for the appearance of its surfboard. Then, if the design is intended to be -- and actually is -- used to distinguish the particular type of surfboard in the marketplace, trademark law may kick in to protect the appearance of the board.

link: http://www.nolo.com/article.cfm/pg/2...0/101/134/FAQ/

How do patents differ from copyrights?

With the exception of innovative designs, patents are closely associated with things and processes that are useful in the real world. Almost at the opposite end of the spectrum, copyrights protect expressive arts such as novels, fine and graphic arts, music, phonorecords, photography, software, video, cinema and choreography. While it is possible to get a patent on technologies used in the arts, copyrights are what keeps one artist from stealing another artist's creative work.

An exception to the general rule is that design patents, which protect the ornamental design of products, can overlap with copyrights. These two legal protections overlap when functional objects -- for example, guitars, table tiles, clay pots, or running shoes -- embody a distinctive or pleasing visual appearance.

http://www.nolo.com/article.cfm/pg/1...0/101/134/FAQ/


I forget the differences from time to time and have to refresh my memory.

One last edit: I found an NPR article about copying fashions, specifically.

Under U.S. law, a company can't copyright a design, but it can register elements of that design as trademarks. If the shape of the bag's flap or the strap across the closure lead a likely Hermes consumer to think the knockoff is genuine, then it's pretty easy to convince a court that the fake violates Hermes trademarks.

http://www.npr.org/templates/story/s...toryId=1434815

and this.