Best Practices to Avoid Copyright Infringement
Updated May 2017
There is no 100 percent guaranteed way to prevent against being sued for copyright infringement. No matter how well prepared you are, your company may be sued, legitimately or not. The following guidelines should help defend against frivolous lawsuits.
☐ Hire your own designers to create original designs.
- By hiring designers, one can retain greater control over the designs that the company brings to market.
- Make sure to have suitable employment/independent contractor agreements in writing and signed by your workers to ensure copyright interests in the designs they create are the property of the company.
- Get your intellectual property attorney involved early.
☐ Maintain a design log with copies of the inspirations behind designs that tracks the evolution of designers' creative process.
- Because independent creation is a defense to copyright infringement,the design logs provide the defendant with the strongest defense to an allegation of copyright infringement.
☐ Understand from where a design came.
- Try to get that information in writing.
☐ Put in place a review procedure for designs.
- It is never a bad idea to double-check one’s work to make sure no copyrights have been infringed upon.
☐ Maintain tight control on the procedures and assets your designers are allowed to use.
☐ Some defenses to copyright infringement are similar to those in any lawsuit.
- These include: statute of limitations, jurisdictional defects, res judicata and equitable defenses such as laches and estoppel.
☐ There is no rule about the number or percentage of changes that insulates you from copyright infringement on apparel.
- Some industry insiders will tell you that if you change a design by ten percent, then there’s no infringement. This is not true.
- The test for copyright infringement is whether a jury, comparing your design to a copyright owner’s design, believes the two are “substantially similar” (or in certain cases “virtually identical”).
- Certain percentage changes to the design will not protect you against a copyright infringement action.
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