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Don’t Duck* the Law: Busting Three Common U.S. Copyright Law Myths

By Guest Contributor

Jan 31, 2018


When it comes to designing, the designers have it. Their eye for creativity and artistry are what draws in consumers and have them coming back. But as companies support their designers, they also need to make sure that their designers don’t run afoul of any intellectual property (IP) rights of others. As we have seen over the years, trampling on—or even being accused of trampling on—the IP rights of others can result in costly litigation that takes resources and time away from the main goal of any fashion company: designing products that consumers want.

Here Crowell shed light on a few common U.S. IP law misconceptions that designers will sometimes encounter and offer some thoughts on how companies can help discuss—and dispel—these myths.

Myth: If a picture is on the internet, it’s in the “public domain.”

The internet has opened the doors and minds of many, but it has also opened the door to easy copyright infringement. The concept of “public domain” is a very specific one under U.S. copyright law, which allows the use of a once-copyrighted item as soon as it has been in the public for a certain period of time; at times we’re talking at least 100 years. So, just because a picture is on Google Images, it doesn’t mean it’s up for grabs. Stay clear, or make sure you obtain a license from the owner.

Myth: If I pay to license the photograph of a famous celebrity, I can use that photograph any way I want to

Beware the right of publicity. In the U.S., people also have right to their image. So, the photographer has the right to a great picture he took of Victoria Beckham, but Victoria Beckham has her own rights to the publicity of her image. Thus, obtaining a copyright license from the photographer is not enough; one must procure permission from the former Posh Spice for her right to publicity as well. Rights of publicity vary state by state, with California and New York having some of the strictest rules for this, so be sure to contact lawyers with specific expertise to clear the way.

Myth: If you change 70 percent of an image, you’ve changed it enough to constitute “fair use.”

There is no legal standard under U.S. law that protects this common “percent change” myth. If you are starting with an image that belongs to someone else and changing it to use for your own purposes, beware: the copyright rights of the owner of that image includes exclusive derivative rights—that is, the right to “recast, transform[], or adapt[]” a work. What’s more, the concept of “fair use” in U.S. copyright law is limited, and applies only to uses that are “for purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research.” . . . In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.”

17 United States Code § 107 (“Limitations on exclusive rights: Fair use.”)

In future pieces Crowell will examine these “fair use” factors and how they’ve been handled in the fashion industry. In the meanwhile, take care when using an image from someone else: that person has more rights than meets the eye.

Crowell will be running regular pieces to help dive deeper into these myths, how best to dispel them, and how to build best practices for those in the fashion industry who want to create, and make sure legal hiccups don’t get in the way.

Written by Preetha Chakrabarti, counsel at Crowell & Moring LLP, an international law firm with a fashion law practice representing clients across the United States as well as in Europe. Crowell & Moring assists clients in the fashion industry with a variety of legal issues, including intellectual property and trade law. They regularly advise on the valuation and exploitation of IP rights, assist clients with filing applications for trademark, design patents, and copyright, as well as litigating and enforcing such rights. Learn more at crowell.com, and click here to understand what ducks represent for the spirit of Crowell.

Photo credit: Jessica Lewis via Pexels.com

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Preetha Chakrabarti