Diane Von Furstenberg designs a bullseye for Target Corp.
In a subject near and dear to my heart, Diane Von Furstenberg Studio LP (”DVF“) filed a copyright infringement suit against Target Corporation. The case is not yet available online, but was reportedly filed on Thursday in Manhattan in the Federal District Court, for the Southern District of New York.
The basis of the suit is that Target copied DVF’s “spotted frog” print and is selling a dress under its Merona label with an identical design. DVF registered the “Spotted Frog” design with the Library of Congress in 2006, which gives DVF the presumption of ownership, the potential to force Target to pay up to $30,000 per act of infringement, and the ability to have Target pay DVF’s attorneys fees. Had DVF failed to register its copyright none of these fun (for DVF) remedies would be available. Well done DVF.
(Check out the article, “Always Register Copyright” in the Winter 2008 Issue of The AXIOM for more information on the benefits of registering copyright in the U.S. )
The issue of protecting the work of fashion designers has always been a tricky. Copyright does not protect “useful articles.” Which generally means that dresses, hats, bags and the like cannot be protected under copyright law; however, prints, and patterns (such as “Spotted Frog”) are protectable because of their artistic value.
Some useful articles may be protected using design patents, which protect novel designs. However, design patents are slow to issue and fashion may have moved on three or four seasons before a designer obtains an enforceable design patent registration. Great if you are designing an iconic piece that will be sold for years, but of more limited value if you retire a look at the end of a season.
Additionally, if a design is unique enough to tell to consumers that the design comes from a particular source (i.e. “that is a DVF dress”), it may be protected under trademark law. However, it’s a difficult task for the designer to prove to a court that a design is so iconic and so tightly associated by the public with a particular designer that it should be protected.
The Design Piracy Prohibition Act (which died in committee in mid-2007) would have amended the Copyright Act to allow a fashion design protection for three years from the first day a design was revealed to the public. Its unclear whether the bill will be reintroduced in the future.
In the meantime, fashion designers have a mishmash of intellectual property laws to use to try to protect their work, with mixed results.
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