California federal jury finds for copyright plaintiff L.A. Printex in Aeropostale fabric pattern case: blurgh

Posted by Charles Colman

See, LAW OF FASHION told you fashion-related copyright protection could be dangerous... twice.

Fashion retailer Aeropostale has lost before a California federal jury in a closely-watched copyright case, brought by a company called L.A. Printex, concerning these two textile patterns -- one of which is an allegedly infringing copy of the other:



L.A. Printex has developed something of a bad reputation in the fashion world, having brought more copyright infringement cases than one can count against a plethora of fashion designers and retailers, most of whom find it cheaper to settle than to fight the frequently questionable lawsuits. When you hear that some people oppose the "Innovative Design Protection Act" -- and wonder, how anyone could possibly be against innovation?!? -- well, people, this is why.  The arguments against additional IP tend to be more abstract than the arguments for it, and thus more difficult to convey to the public (and to lawmakers, for that matter.)

But this is pretty damn concrete: when the government grants excessive intellectual property protection (and provides overly permissible enforcement tools), it makes it possible to run an entire business based on IP litigation.  Without creating anything at all.  Where's the "innovation" in that?  (And while we're on the topic, check out the abstract for my work-in-progress, Copyright, Shame, and Extortion: The Thriving Cottage Industry of Pornography-Related Infringement Lawsuits, on SSRN.  Same deal, plus a throwback to Victorian sexual mores... good times.)

Many had hoped that the Ninth Circuit, during the first -- though hopefully, not last -- appeal in this litigation, would help designers and retailers to get rid of... questionable textile infringement cases at the summary judgment stage of litigation.  However, an April 2012 decision from the appellate court did quite the opposite, raising serious questions about when, if ever, defendants in cases like this can avoid liability without going to trial.  (See this excellent summary of the Ninth Circuit's opinion, written by Jonathan Zavin of Loeb & Loeb.)

In the wake of the April 2012 Ninth Circuit decision, the California Fashion Association lamented that "copyright 'trolls' pepper California and Federal courts with copyright infringement claims, which are costly to defend. These claims sometimes result in settlements, and are otherwise decided through the litigation process. The availability of a modestly inexpensive means of disposing of these cases through litigation has had a direct bearing on the costs of settlement.  If Motions for Summary Judgments can succeed, there is a chance that the costs to settle future cases may be reduced. This case, however, does not help that cause...."   Indeed, even apart from the procedural questions unfavorably resolved in the Ninth Circuit's decision, the CFA expressed with disappointment that under the appellate court's ruling, "[e]lements of two designs may be found substantially similar, even though the elements are completely different sizes and of different importance in the overall print.  That should give designers heartburn."

(N.B. In an interesting September 2012 blog post, Eric Goldman explored one lesser-known technique for disposing of bogus textile-related copyright infringement lawsuits.)

The aforementioned designers' heartburn will only be exacerbated by the recent jury verdict against Aeropostale over the textiles pictured above. As the law firm Arent Fox reports, Aeropostale admirably advanced its arguments that, inter alia, L.A. Printex's "textile designs lack[ed] valid registered copyrights, were never marketed, and were created during the litigation."  But these sorts of legalistic arguments can be difficult for jurors to follow, and they lack the visceral impact of seeing two textile patterns in front of you that do, after all, look pretty similar.  This problem, you see, is part of the reason why we have judges resolve key legal questions at the motion to dismiss and summary judgment stages of litigation.  When courts refuse to do so, well, what you get is exactly what happened here: a paltry period of juror deliberation and across-the-board findings for a plaintiff in a complicated case with several nuanced issues that should have been mulled over at length.

So, um, shrug.  For now, at least.

[UPDATE (5/17/13): No, my friends, we must do more than just "shrug."  We must discuss ways to dispose of these cases -- perhaps in the form of an ABA-sponsored CLE.  Yes, that's what we'll do!]

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