WELCOME TO ...
The Relevance of
Copyright Protection
in the Textile Industries
Sunflowers textiles
by Leeré Aldrich
presented by:
Lien Verbauwhede Koglin, WIPO
___________________________________________________________________
WIPO NATIONAL SEMINAR ON INTELLECTUAL PROPERTY FOR
SMALL AND MEDIUM-SIZED ENTREPRISES (SMEs)
IN THE TEXTILE INDUSTRY
Damascus, July 21 and 22, 2010
Larysa Kushner
Overview
1. What is Copyright
2. Why Copyright is Relevant in Textile Sector
3. How to Maximize Your Protection
4. Using the Works Owned by Others
1. What is Copyright ?
Copyright
Grants authors, artists and other creators legal protection for their
creative expressions in literary, scientific and artistic domain (‘works’)
Literary works
Musical works
Artistic works,
architectural works
Photographic works
Maps, charts, diagrams,
technical drawing
Motion pictures
Computer programs,
original databases
Dramatic works
4
What is Copyright
Fabrics
•
Artwork applied to clothing or to other useful articles
•
Fabric design patterns
•
Needlework and craft kits
•
Patterns for sewing, knitting, crochet, needlework
•
Weaving designs, lace designs, tapestries
•
Sketches and patterns
Appliqués : Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205 (2000)
Photos: WIPO/S.
Castonguay
What is Copyright
Textile Machinery:
•
Software to operate and/or maintain machinery
•
User, repair or maintenance technical manuals for various
types of equipment and machinery
•
Sketches, drawings and maps
What is Copyright
Marketing materials:
•
Trade and product catalogs
•
Artwork and text on product literature, labels and packaging
•
Marketing and advertising materials (on paper, billboards,
websites, accounting forms)
•
Content on websites
•
Sales training program captured on videocassette and CDs
•
Newsletters
•
Copyright protects works that are expressed in print as well
as those created or stored in electronic or digital media
What is Copyright
Some things protected by copyright and other areas of laws
•
Logos
•
Characters in literary and graphic form
– A creative image might be protected by CR
– Might be registable as TM
•
Scooby Doo Fabric by Cranston Village
Licensed by Hanna-Barbera
Works of applied art
– Varies significantly from country to country
– Might be overlapping with Industrial Design
• Often limited for three-dimensional functional articles
• The pictorial, graphic or sculptural features that
can be “identified separately from the utilitarian
aspects” of an article
What is Copyright
•
Article 3 of the Copyright Law of Syria No./12/2001 stipulates that
among the protectable works are:
c) Works of plastic and applied arts and photography
•
However, if you intend to mass produce or make multiple copies of
items, it is recommended to rely on design law rather than copyright
law
Registration AU 120955 S
Application 199400092
What is Copyright
Criteria of protection:
•
Originality of literary and artistic expression
– should originate from the author: product of independent creation
•
Fixation in a tangible form generally required
•
Quality not relevant
(Photo: ABC Wax (Cha Group))
What is Copyright
Originality:
Banzai, Inc. v. Broder Bros. Co. (E.D. Pa. 2009)
Banzai brought suit against Broder Brothers for copyright
infringement of its tye-dye fabric designs “USA Ultra
Spiral Design” and “Orange Ultra Spiral Design”. The
Court dismissed the claims on the basis that the designs
lacked sufficient originality to merit exclusive rights:
– the tie-dye spiral design is common and not proprietary to
Banzai
– its only unique contribution was to select the colors
– Placing basic, predictable color combinations into a preexisting design does not satisfy the minimum creativity
necessary to establish a valid copyright
Exclusive Rights
Economic Rights (Use)
– Reproduce or make copies
Examples
– Display or perform to “the
public”
- Reproduction of a pattern in various
forms, e.g. printed publications
(catalogs, t-shirts, posters, etc.)
- Sell the products or copies of the
products to the public
- Online catalogs
- Exhibit the works in fairs, craft
– Adapt and translate
exhibitions, museums, etc.
– Rent*, lend*
- Adaptation of a pattern for different
– Distribute to “the public”
– Communicate to “ the public”
and make available on the
Internet
Assignment or License
products
* Generally applies only to certain types of works:
Cinematographic works, musical works, or computer
programs
http://www.donestore.com.au
What is Copyright
•
The property rights over a physical object (work) are completely
independent from the IP rights of the creator.
•
The buyer of a work acquires the physical object, but not the copyright,
design rights, etc. over the work
– E.g. painting: only pigments, canvas, frame, stretcher
– E.g. t-shirt: only the cotton cloth
•
Copyright in the work remain with the creator unless he expressly
assigns it by written agreement to the buyer
What is Copyright
Example:
Artist sells his painting...
by Ahmad Azzubaidi
•
Buyer cannot reproduce it on fabric (reproduction
right)
•
Buyer cannot exhibit the painting in art gallery or
other public place (exclusive right to show the work
in public)
•
Buyer cannot alter the painting in a way that is
prejudicial to the honor or reputation of the author
(moral right to object to derogatory treatment)
Exclusive Rights
Moral Rights (Europe, Syria)
Examples:
- Right of paternity (authorship):
acknowledgement
- Right of integrity: object against
mutilation and/or distortion that may
discredit the reputation of the author
Can Not be Transferred
Waivers?
- 2000 Alberto Korda (Diaz Gutierrez)
sued Smirnoff's advertising agency,
Lowe Lintas, and the picture library, Rex
Features,for use of the picture of Che
for Smirnoff's advertising company in
UK
What is Copyright
•
How to Obtain Rights: Copyright exists automatically upon creation
•
Remember: To maximize rights, if possible, register copyright claim
with the national authority
– Available in Syria
•
Advantages of Registration: will be accepted as evidence of
copyright ownership in the event that you wish to enforce your
copyright against an infringer and greatly reduces the preparation of
evidence
What is Copyright
Term of Protection:
•
Author’s lifetime plus 50 years
•
Article 25 of the Copyright Law of Syria No./12/2001 Copyrights of
work shall be fine arts enforceable for ten years starting from the date
of producing such work
•
Notice Requirements: Optional but strongly recommended
– © or “Copyright” with year of first publication and name of owner
What is Copyright
•
Scope: Protects against unauthorized use or copying
•
Test for Infringement: Unauthorized use or copying
– access to the copyrighted material
– identity or substantial similarity with the copyrighted material
Independent creation is often used as a defense
•
Importance of dated records of the first creation of the work
•
Copyright subsists worldwide: Berne Convention (Syria is a
member)
•
But national law applies
Case Study: Copyright on knitting machinery specifications
From the IPEuropAware Guide for the Textile and Clothing Industry
• A European company S that sells advanced knitting machinery to
manufacturers in China discovered that a local competitor was
selling a competing product not under the company’s European
trademark. The competing product copied:
– the dimensions, exterior covering and even the colors of the original
product
– brochures and website copied pictures, diagrams and product
specifications of the original product, even though the local product
did not meet the same performance specifications.
• Misleading of the customers
• The company did not have any patents registered in China
Case Study: Copyright on knitting machinery specifications
•
The company could only rely on claims of copyright infringement on
their brochure artwork and infringement of the Anti‐Unfair
Competition Law in relation to the false claims on the brochure
•
To avoid the costs of litigation in the courts, the company engaged a
local law firm to send a warning letter to the competitor, followed up
with a phone call
•
Result: the competitor changed the photographs and some of the
contents of the brochure, but there was no legal basis to force them
to change the appearance of their product
2. Why is Copyright Relevant to Your Business?
Why Copyright is relevant
1.
Control of Commercial Exploitation
Exclusivity over the use of copyright protected works helps
business to gain and maintain competitive edge in the
marketplace
2.
Generate Income
•
•
Copyright is a tradable asset that may be owned, bought
and sold the same as other types of property
–
sell copies of the work (e.g. t-shirts)
–
sell copyright in the work
–
permit (license) others to use your copyrighted work
Can have an important long-term value for your business
Why Copyright is relevant
3. Effective Marketing and Advertising
Enticing marketing or advertising materials requires use of creative
text, artwork, logos, etc., which are all protected by copyright.
In the digital environment, companies are turning to the Internet and use
copyright protected works on their websites to get noticed, build loyalty and
ultimately boost sales
- Written text
- Images: photos, drawings, charts
- Short movies and video clips
- Music, radio
- Computer programs and interactive games
- Directories, databases, lists
•
Raise Funds
•
Take actions against infringers
Case Study
From the IPEuropAware Guide for the Textile and Clothing Industry
•
Small Enterprise X introduced children’s T-shirts decorated with cartoon
characters onto the market. The enterprise did not find any trace of the
characters in the trademark and design databases and so presumed that
they were not protected and that their use was legal
•
The cartoon characters were protected under copyright. As copyright is a
self-executing right, it was not registered in any database. It was a surprise,
therefore, when they received a declaration from Company Z, a cartoon film
producer, that stated that X was infringing its copyrights
•
Small Enterprise X reached an out-of-court settlement with Company Z
•
Enterprise X could continue selling the product after payment of
compensation and royalties from further sales. The compensation resulted in
the loss of a few years’ profit for small Enterprise X.
3. How to Maximize your Copyright Protection
in Your Business’ Creations?
How to maximize your copyright protection
1. Ascertain Ownership
•
Consider if it is desirable or not for you to own the copyright :
•
Whether or not you might want
– to prevent unauthorized uses
– to license the work to the third parties
– to re-use the commissioned work for the same or different purposes in
future
– How much you want to pay
How to maximize your copyright protection
•
Commissioned work (to be created by freelancers and other
organizations for you):
•
! Don’t assume you own the copyright just because you paid for it to be
created or you have ownership on a physical copy of a work
•
General Rule: The creator (the author) of the work is the first
owner
Till other is not stated in written in the contract the general rule applies
Solution: Written Contracts
How to maximize your copyright protection
•
Author ≠ Right holder (ownership)
•
Work created by your employee
–
Owner = employee
–
Owner = employer, automatic transfer
–
Owner = employer, assignment needed
–
Different rules for computer programs
–
Employee or independent contractor ?
–
Work created as a part of job?
Solution: Written Contracts
How to maximize your copyright protection
2. Prove Ownership
•
Deposit or register your work with copyright office
– Available in Syria
•
Deposit copy with bank / lawyer
•
Send yourself copy in sealed envelope
•
Copyright notice
3. Protect Works in Electronic Form
How to maximize your copyright protection
What to do if you think your copyright has been infringed ?
•
Get legal advise
•
Decide what you want
– That you gain a new licensee
– That the unauthorsed use stop
– That the illegal or master copies of your work be delivered to you or disposed
– That you are paid damages
•
Contact the infringer
– “Cease and desist” letter
•
Consider formal legal action
How to maximize your copyright protection
What to do if you think your copyright has been infringed ?
•
Bringing legal proceedings against an the one who use your
works without authorization (infringer)
is advisable only if:
1.
you can prove that you own the copyright in the work;
2.
you can prove violation of your rights;
3.
the value of succeeding in the legal action outweighs the costs of
the proceeding
How to maximize your copyright protection
Some of the tactics for the SMEs in textile industry might include:
•
Flooding the market with the copyrighted pattern books
•
Constantly changing design
•
Offering competitive price and quality
•
Developing complex designs (difficult to copy)
How to maximize your copyright protection
Informal tactics:
•
Dropping designs from the firm’s collection if a copy is found
•
Developing complex weavers to make it more difficult to copy
effectively
•
Improving co-operation and communication between the firms
•
Building good relations with the clients
4. Using Works Owned by Others
Using Works Owned by Others
May enhance the value or efficiency of your business
Examples:
-
Use of design/pattern developed by other
-
Use computer software or databases created by other
-
Illustrate your website or catalogs with photographs taken by
others
Requires, in most cases, prior permission from the copyright
owner
Using Works Owned by Others
Possible involvement into the copyright violation
•
By selling or otherwise commercially dealing with an item that violates
someone’s copyright
•
Importing a copyright item for commercial purpose
Using just a part
•
“Substantial” part/features of the work
•
Quality rather than Quantity Assessment
•
No violation for use of non-original or stock elements
Alterations or additions do not avoid infringement.
One thing might contain several copyrights.
Conclusions
• Maximize your copyright protection
• Ascertain copyright ownership
• Avoid infringement
• Get the most out of your copyright
Thank you for your attention!
Any Question?
WIPO’s website for SMEs :
www.wipo.int/sme
Contact address: larysa.kushner@ehu.lt