Copyright is one of the most important intellectual property rights in the fashion industry. It rests ‘by rights’ – and therefore automatically – on every creation. Registering a ‘design right’ for each individual fashion item is far too expensive (and cumbersome) and trademark rights usually do not protect the print that makes a particular scarf so unique. Copyright offers the solution to the fast-paced fashion industry, where multiple collections appear each year and copying is the order of the day.
application in practice
The law often remains abstract. There are requirements and rules, but also gray areas and exceptions. The actual application of the law is left to the judiciary. A degree in law is necessary in order to be able to correctly interpret and advise on the abstract laws.
In this article, the Dutch law firm Köster Advocaten explains two such judgments, because their application in practice provides the examples and explanations for companies to deal with copyright correctly. This article is specifically about two recent judgments on copyright from the Netherlands.
Violation of floral and diamond patterns on scarves
In this case, it’s about scarves. More precisely, two scarves designed by Bylime and sold in the shops in Amsterdam and Leidschendam and in the department store De Bijenkorf. The scarves, to which Bylima claims copyright, are itemized ‘Skafos Diadromi’ and ‘Diamond Pendant’. According to Bylima, La Mere Modesty copied her scarves, which is copyright infringement.
In such a case, the court must always first check whether the plaintiffs’ design is protected by copyright. Without copyright protection, of course, there can be no copyright infringement. In this case, the Amsterdam Court found that the two Bylima scarves have the required “own and original character and bear the personal stamp of their creator”. The way the court arrived at this verdict is typical in copyright cases. It is important to describe the copyrighted elements as accurately as possible.
The court stated in its judgment: “The Skafos Diadromi model is characterized by the flower shape applied to the scarf, which consists of small stones – alternating long stones in the shape of a cross and small round intertwined stones as corners surrounding a large round stone are arranged in the middle, which in turn consists of eight small stones. The flower of stones is regularly distributed over the cloth according to a pattern – alternating rows of two and three flowers. The flower shape is copyrightable” and “The diamond pendant is characterized by a diamond shape mounted on the scarf, composed of elongated stones arranged in a single line. A ‘stem’ of stones is attached to the diamond shape. The diamond shape of the stones is evenly distributed across the cloth and follows a pattern – alternating rows of two and three diamonds. The diamond shape is copyrightable.”
So the first step has been taken: Bylima scarves are protected by copyright. The next question is: Does La Mere Modesty also infringe copyright? Yes, is the verdict. Although the coverage of the Bylima scarves is small, the patterns on the La Mere Modesty scarves are “virtually identical”. This means that even seemingly “simple” designs of everyday objects such as scarves can be protected by copyright. There is a risk of copyright infringement when marketing an almost identical product!
Copyright infringement by posting a hockey picture on a sporting goods webshop
But not only clothing, shoes and accessories can be protected by copyright. Photographs used for advertising purposes are also very susceptible to copyright infringement.
Most people know that product photos taken in a studio specifically for this purpose can be protected by copyright. But what about the nice picture that was easily found via Google Images and illustrates the webshop or the contact page? It can be saved in simple steps without any technical restrictions or watermarks. Then it can be used easily, right? The answer is: No, certainly not just like that and certainly not always.
This was also the case that took place in the Rotterdam District Court at the end of 2022. A photographer – specializing in sporting events – is seeking compensation for infringing on his copyright and privacy rights in the photo, titled “Hockey.” The said photo was used by the defendant sports equipment company on its website.
The company’s defense was as follows: The violation was not intentional. The court was willing to accept this, but left copyright infringement and liability for damages untouched. Because: “The accidental infringement of someone else’s copyright also constitutes copyright infringement under the law. In addition, web shop operators can be expected to ensure that a photo that is to be placed on the website is protected by copyright and who the author(s) of the photo in question is. A duty to examine, which the company, as it has stated itself, has not complied with.”
And this obligation to examine is not only the responsibility of the operators of a web shop or website if they put the photo on the website themselves, but also if the website builder has done so. It’s another “commonly heard defense” that the operators didn’t post the photo themselves. Perhaps the operator(s) of the web shop or website can then knock on the door of the website builder(s) and claim damages, but that does not change the liability and obligation of his plaintiff – photographer – to pay damages.
The compensation is calculated on the basis of the tariff usually charged by the photographer – the license fee.
Written by Lucia van Leeuwen. Lucia van Leeuwen is a lawyer at Köster Advocaten in the areas of intellectual property and litigation. Köster Advocaten regularly reports on current legal issues here.
This article was published on FashionUnited.nl. Translation and editing: Barbara Russ