Apparel Design and Creation: What to Do When Copyright Trolls Are Lurking

An unpleasantly hot fashion trend has been plaguing the apparel industry — resulting in retailers, apparel manufacturers and textile manufacturers finding themselves trapped in copyright infringement lawsuits made by copyright trolls. These entities go after apparel companies by aggressively and opportunistically enforcing the copyrights they own with the intention of making money in litigation.

The strategies copyright trolls employ make it difficult to defend against infringement claims. First, they amass large “libraries” or “stockpiles” of copyrights on a vast array of fabric prints — a lot of which they may not even be producing or licensing for paid distribution. They then send out teams of “shoppers” to hunt through retailers’ merchandise and textile manufacturers’ inventories to locate merchandise that is made of fabric that is identical or substantially similar to one of their copyrighted fabrics.

Even the most basic fabric prints — such as floral, paisley, animal or geometric — may be subject to a copyright infringement lawsuit. Once the copyright trolls find something, and they likely will, they retain law firms to send out hundreds of “cease and desist” letters and file lawsuits. Whether or not the claims have merit, litigation is expensive and risky, so most companies prefer to settle rather than fight.

When a company is constantly adding to its line of clothing or fabrics and includes hundreds, if not thousands of prints, legally vetting and clearing every single one is not practical. It eats up a lot of time and money.

So how can apparel-related businesses best position themselves to avoid copyright infringement claims by copyright trolls? Or if a claim is made and the threat of litigation looms on the horizon, what can they do to mitigate the damage?

Even though the only absolute protection is to sell only solid fabrics, which obviously is not realistic, companies can still take some steps to protect themselves.  For example, designers should be educated on the importance of not copying print designs.  This sometimes happens inadvertently — designers may see a fabric somewhere and imitate or be influenced by it without even being conscious of that.  They need to keep front of mind the necessity of avoiding such situations.

Also, when creating fabric designs that follow or incorporate a particular fashion trend, designers need to take care that their interpretation of the fabric doesn’t cross the line and can’t be considered “copying.”

Know your sources.  When purchasing print fabrics, only use reliable vendors — those whose track record you know.  And include in purchase orders clear indemnification and hold harmless clauses, shifting the burden and the cost to the supplier in the event of a copyright infringement lawsuit.

Whether retailers or manufacturers, legitimate companies are in the business of creating great products their customers will appreciate and enjoy.  Copyright trolls exist for the sole purpose of targeting these legitimate businesses and finding opportunities to file claims and seek monetary settlements. Attacks like these are difficult to defend against so it’s important for apparel companies to be prepared for when copyright trolls inevitably rear their ugly head.

Attorney Mark Peroff, from the law firm Peroff Saunders, P.C., has represented clients in the United States and globally on a range of intellectual property matters, including copyright infringement lawsuits with copyright trolls.