Photo of Petro Zillia fashions and NOir jewelry by Orlando Vivas (more on the House of Petro Zillia blog page )
While you can’t copyright a fashion design—at least not yet, more on that here—you can copyright jewelry as “visual art.”
A few people on NOir’s Facebook page mentioned the well-worn–and totally wrong–“30 percent rule.”
To clarify: Many people in fashion believe you won’t get hit with a copyright infringement suit if you copy a design but change at least 30 percent of it.
Copyright infringement cases are determined by a jury which decides whether there is “substantial similarity” between the original and the copy.
I asked Doug Lipstone, an attorney with Manning & Kass, Ellrod, Ramirez, Trester LLP, for a bit of clarification.
“Making 30 percent changes is irrelevant,” he said. “The question is did they copy and an important element is substantial similarity. In a copyright infringement case…typically there is no direct evidence of copying, so to show that copying occurred (a necessary element of copyright infringement), the plaintiff makes its case with circumstantial evidence: (1) Did the defendant have access to the plaintiff’s work; and (2) Is the defendant’s work substantially similar to the plaintiff’s work. If the answer to both is “yes”, then the presumption is that there was copying.”
(But wait—even if you successfully argue (1) and (2), the case isn’t a slam-dunk. Lipstone explains: “The defendant can rebut that, for example, by proving independent creation.”)
But for argument’s sake, I’m turning the case over to you, the reader. Be the virtual jury. Are these designs substantially similar? How would you rule if you were on the jury in a case like this?
Here are the images from NOir’s Facebook page:
Published Oct. 13, 2011 at