Copycat Designs to Have Day in High Court
As designers from New York to Paris prepare for another round of runway shows next month, the biggest fashion statement of the year may well come out of the Supreme Court.
On Wednesday, the high court will hear arguments in a case involving retail giant Wal-Mart Stores Inc. and a New York garment manufacturer. The outcome could affect the way thousands of clothing firms in Los Angeles and across the nation do business.
For the first time, the justices will scrutinize the apparel industry’s well-known--and controversial--practice of knocking off each other’s designs, a process by which fashion trends are born and perpetuated. The court is expected to clarify elements that make a product’s look or image so distinctive that it cannot legally be copied.
In 1996, Samara Bros. Inc., which makes children’s clothes, sued Bentonville, Ark.-based Wal-Mart for selling children’s seersucker playsuits that the retailer, according to Samara, had allegedly copied and sold under its own “Small Steps” label.
In court documents Samara said that Wal-Mart, in 1995, had sent photos of Samara seersucker playsuits to Judy-Philippine Inc., a Philippine manufacturer that then copied 16--13 were copyrighted--of Samara’s garments.
Samara claimed its seersucker fabric, appliques and rickrack-trimmed collars are used in a unique enough way to merit protection. Wal-Mart argued that Samara had no legal right to the playsuit’s designs.
But at the end of a weeklong trial in New York, a jury found in favor of Samara, saying the company’s “trade dress” was “inherently distinctive.”
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The so-called “trade dress” law has been used recently to battle knockoff artists. Simply put, the federal law provides protection against the copying of a design if the knockoff is too close to the original and thus confuses consumers.
Trade dress previously has been argued in cases involving the decor of restaurants and the color of a product. And in those cases, trade dress was ruled on par with trademark because a design can be “inherently distinctive” and should be legally protected.
“I think the reason they [Supreme Court] accepted this case is so they could take a crack at clarification,” said Steven Gursky, a New York intellectual property lawyer. He won a $6.4-million settlement six months ago for Tommy Hilfiger in a counterfeiting case against Wal-Mart.
“The fashion world, which I spend a lot of time in, has always had its permissible area of copy. The silhouette of a shirt or dress is rarely protected. Fabric designs have been copyrighted for years, but they have to be distinct.
“There is an element of spinning off and copying . . . that is the essence of the apparel industry,” Gursky said.
The basic silhouette of an item isn’t covered under copyright laws, but creators can legally register specific fabric, embroidery and other artwork designs. Further, basic silhouettes, such as A-line skirts, blazers or even slipdresses, aren’t considered original under law.
“In some levels in the fashion industry, people can look at clothing and know who makes the clothes based on the appearance of the product,” said Theodore H. Davis, an Atlanta attorney and member of the International Trademark Assn. The New York group filed a friend-of-the-court brief in the Wal-Mart case.
Davis cited as an example a notable 1995 Versace dress with safety pins running up the side seams.
“It’s so unique to begin with and it got so much press that people knew when they saw a safety-pin dress that it probably came from [Versace],” he said. The safety-pin idea is still showing up in fashion, most recently when all three Dixie Chicks wore a Todd Oldham version at the latest Grammy Awards.
“On the other extreme, you have athletic socks. No one really looks at athletic socks and says, ‘Ah, yes, this must be a Hanes product.’ They’re not really designed to be unique,” Davis said.
But fashion ideas are frequently copied from multiple sources, which blurs the origins of the trend, said Stan Herman, president of the Council of Fashion Designers of America in New York.
“It’s difficult to litigate this thing,” said Herman, a lounge-wear designer. “A minor change on a print seems to be enough for people to claim they are not copying something.”
Indeed, such basics as cargo pants, nylon backpacks and rubber-soled shoes have been hot trends that were knocked-off throughout the industry.
“Nobody’s got a lock on a bias dress, a plaid, a stripe,” said Allen B. Schwartz, founder and designer of A.B.S. The L.A. manufacturer of contemporary women’s wear is known for its ability to provide, within weeks, variations of dresses seen on actresses at the Academy Awards and Golden Globes.
“If someone has the audacity to steal someone’s artwork, that’s stealing,” he said. “But if cargo pants are hot, they’re hot at the runway level, the contemporary level and the Wal-Mart level,” he said.
“That is what fashion is. It’s ‘trending.’ It’s all a race to be first,” he said.
“I think the idea of copying is as old as the industry,” said Edie Locke, regional director of the Fashion Group International of Los Angeles, a worldwide trade group that represents members in the fashion, beauty, costume and interior design industries. “This country to some extent is based on the idea of trying to make things available on a more mass basis when something is good.”
Some members of the fashion and legal industries fear a stricter law could hamper creativity and inhibit its well-oiled trend machine.
“People spend millions of dollars a year on predictive services for someone to tell them that purple is the color,” said Barbara Bundy, vice president of education at the Fashion Institute of Design and Merchandising in Los Angeles.
“I think we’ve got enough laws on the books. We don’t need another Big Brother,” she said.
Gursky said he would prefer that the court “establish broader protection for those who are often copied” but added that “the protection can be too broad, and it might trip over the rights of others.”
Some, like Herman of the fashion council, wonder how far the justices will go in the case.
“It will be interesting to see if the Supreme Court understands what the art of our business is. If they designate that this child’s garment is an art form, it will make our business go up a notch. There is an art to our business,” he said, “but we are not van Gogh.”
Valli Herman-Cohen, Michael Quintanilla and Barbara Thomas can be reached at socalliving@latimes.com.
