Urban Outfitters Found Liable for Copyright Infringement

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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The Ninth Circuit has ruled that Urban Outfitters willfully infringed the copyright in a fabric design owned by Unicolors Inc.

Unicolors is a “textile converter” that creates, buys, or licenses rights to graphic artworks that it uses in textile designs.

Unicolors contended that a dress sold by the Urban Outfitters subsidiary Free People used a palm-leaf design that was very similar to a Unicolors design.

Unicolors sent Urban’s lawyer a cease-and-desist letter, then filed suit.

Jury Award

As California Apparel News reports, a jury awarded Unicolors $164,000 in its suit against Urban Outfitters in 2015. The jury found that Urban had willfully infringed the Unicolors copyright.

As the court noted,

A plaintiff must show “copying” of a protected work to prove copyright infringement.If there is no direct evidence of copying, a plaintiff may prove this element through circumstantial evidence that (1) the defendant had access to the copyrighted work prior to the creation of defendant’s work and (2) there is substantial similarity of the general ideas and expression between the copyrighted work and the defendant’s work.

Unicolors could not prove directly that Urban had access to its fabric. However, Unicolors had sold 14,000 yards of the fabric during the three years before the Urban dress was created. The lower court said that wasn’t sufficient to show that the design was “widely disseminated.”

Strikingly Similar

The district court focused on whether the designs were “strikingly similar,” and concluded that they were:

Looking at two designs as a whole, the arrangements, shapes and details of all the floral or feather motifs are almost exactly the same.

The jury also found that the infringement was willful:

At trial, Unicolors presented evidence that Urban adopted a reckless policy with regard to copyright infringement because it made no attempt to check or inquire into whether any of the designs it used in its apparel were subject to copyright protections.

How Can Retailers Avoid Lawsuits?

In another related lawsuit, Unicolors also sued more than 60 retailers that carried the same Free People dress.

Unicolors has been involved in at least 90 copyright infringement lawsuits since 2005.  Most such cases settle out of court, so it’s unusual that the Urban Outfitters case not only went to trial but was appealed all the way to the Ninth Circuit.

Fabric designs, like other woks of authorship, can be registered with the US Copyright Office.  However, it can be difficult to search for registered designs without knowing the precise name or registration number of the design.

As California Apparel News suggests, manufacturers and retailers can try to protect themselves against lawsuits by getting an indemnity agreement from the fabric converter or supplier, covering third-party copyright infringement claims.

Equal-Opportunity Offender

Urban Outfitters is known for its sometimes-controversial design choices.

As The Week notes,

Over the years, Urban Outfitters, a store aimed at young hipsters and owned by big-time conservative donor Richard Hayne, has managed to offend blacks, Jews, Native Americans, liberals, conservatives, and eating-disorder awareness groups, among others.

Photo Credit: Urban Outfitters, Mike Mozart, Attribution 2.0 Generic (CC BY 2.0).

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