No “30% solution”

Here I am, sitting 44 stories above the Garment District itself (when I’m not standing under its immortal needle, shown below), and I needed Staci Riordan‘s new fashion IP blog all the way out on the Left Coast to tell me about the “30% rule” which she, wisely, advises designer clients doesn’t exist:

There are two business mantras that every fashion company should follow:

1. Always take the meeting, and
2. Get it in writing

Recently, due to the drastic increase in the numbers of copyright infringement cases being filed, I have added a third: there is no such thing as a 30% rule or whatever “rule” your designer may tell you.

Buying a copyrighted print, then changing it a certain percentage is not permitted and can get you into expensive litigation quickly. In October, the California Apparel News reported that one recent trial over a paisley print ended in a six figure judgment.

Without having ever heard this not-so-magic number before, I’ve had more than one “Industry” client ask me “how much” he has to change a design he intends to knock off that is similar to what “everyone’s showing” before it’s immune from a copyright infringement claim.  One of them asked me this after handing over a pretty substantial six-figure check at the end of a mediation in a case that could have resulted in an immensely worse trial outcome.   No, his designer was nowhere near this conceptual 30% “change” (more like 3%).  But of course, how would you measure that percentage anyway?  Calipers?

As Staci points out elsewhere, it’s hardly obvious what designers really want, or should want, from the law with respect to the knockoff phenomenon, which drives fashion influence and profitability and without which designers would be irrelevant. Those supposedly lower (not always!) on the fashion food chain who do the copying want to know exactly where to stop copying before it’s, you know, copying.  In perfect mirror image, and just like so many others who want to rely on IP to protect their businesses, designers too want to be use the law to control competition and innovation ju-u-u-u-u-ust so.

It can be pretty dicey drawing that line, too.  Depart too far from “this year’s look” and you’ll be left out in the cold.  Guess wrong about whether that “number” you hope is going to make your season is infringing and — if it’s a copyright claim (as it may be regarding a pattern, though typically not for overall clothing design) — you could be on the hook for damages (theoretically, at least, big statutory damages even).   But what can really be the killer, because it’s unrelated to whether any damages are even awarded, is an award of attorneys’ fees to the copyright holder.  That’ll kill your season.

So, how do you measure that sort of thing — a clothing manufacturer’s year versus possible six- or seven-figure liability for copyright infringement, with pretty much nothing in between (unless you hire me to handle the mediation)?

Like, with calipers!

UPDATE:  Wow — if clothes make the man, surely furniture makes the house.  So check this from Marty Schwimmer out in a similar vein.  Stylish hat tip to @negot8or, i.e., Jeff Gordon of the Licensing Handbook blog!

Originally posted 2010-12-09 16:52:12. Republished by Blog Post Promoter