By: Joyce Klemmer

Copyright law is in the news again this week, including the rise in copyright infringement cases against retailers in copyright infringement cases over textile patterns. Retailers are now one of the top groups of defendants in copyright infringement cases brought by manufacturers of patterns and fabrics. According to a new report from legal strategist Lex Machina, the top four defendants are Ross Stores, TJX (parent of the T.J.Maxx, Marshalls and other brands), Amazon, and the Burlington Coat Factory. Other retailers targeted include Forever 21, J.C. Penney, Nordstrom, Sears, and Wal-Mart. According to Lex Machina, “They have a lot more copyright litigation than trademark litigation.”

Fashion designs are not protectable under current U.S. copyright law (Nimmer on Copyright, § 2.08 [H]). Nimmer differentiates between two separate concepts that fall under the term “fashion designs”: (1) “fabric designs” and (2) “dress designs.” Fabric designs are copyrightable; dress designs – the shape, style, cut of a clothing garment, are not protectable by copyright because clothing is considered to be a “useful article” as defined in section 101 of the Copyright Act. (Nimmer on Copyright, § 2.08 [H])

As reported in the article, The Rise of Copyright Infringement Lawsuits — and What Retailers Can Do About It, “the four leading plaintiffs—L.A. Printex, Star Fabrics, United Fabrics International, and Unicolors Inc. – filed 67 cases in 2009, increasing their activity steadily to 106 cases in 2014. The four companies are on track to outpace last year’s total again in 2015.”

Contrary to the American rule that each party bears their own attorney’s fees in litigation, the prevailing party in a copyright infringement suit may be awarded its reasonable attorney’s fees and costs. This is powerful leverage and, consequently, most copyright infringement cases are best resolved by early settlement.