MSBA session will talk fashion, intellectual property

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Maryland isn’t a major fashion hub like Los Angeles or New York, but there is an artistic community whose members need advice about how to protect their intellectual property, from clothing designs to identifying marks.

“In my experience, just working with local designers in a pro bono sense, there is a scene here,” said Nicholas Hawkins, an attorney with Under Armour. “There is a creative scene in Baltimore, you know, (the Maryland Institute College of Art) is here.”

Hawkins will moderate a panel on fashion and intellectual property Friday at the Maryland State Bar Association’s annual meeting.

If an up-and-coming designer ever leaves Maryland for a larger market, they should be well versed in their intellectual property rights, he said.

“A lot of them are trying to develop their thing here so why not help them here?” he said.

For recent MICA graduate Izzy Stein, protecting her designs as a new business owner is important but not something she stresses about yet. Stein was named an entrepreneur-in-residence at Open Works, a community makerspace in Baltimore, where she will develop her business PopOpShop, which features handmade jewelry, home goods and textiles.

“When it comes to protecting your intellectual property online, it can be tricky,” Stein said via email. “For now, the way I protect my designs is simple: I make sure that whatever image of my textiles designs that I post online is of a generally lower quality. Not extremely low, but low enough that someone could not take my pattern and print it on their own fabric.”

Instructors talk to students about intellectual property issues, according to Stein, but the consensus is making your work available makes you vulnerable.

“The internet is such a gray area, and I feel that some artists may even expect that their work will get copied at some point, but hopefully the harm from it is minimal because artists are generally respected and have usually created enough of a following to sustain their business by the time someone steals their design,” she said. “It’s harmful always, though, and when large companies steal designs from small artists, that causes the most damage. ”

Hawkins said intellectual property theft is an issue facing designers in Maryland and there aren’t a lot of resources for them, but panelists at Friday’s session will discuss issues facing practitioners with fashion designer clients and also provide an overview of the field for attorneys who may want to include fashion intellectual property in their practice.

“IP is such a large field,” Hawkins said. “It encompasses hundreds of different industries so what we wanted to do was focus on just one of those industries.”

Program co-chair Emily R. Billig, of Baker Donelson in Baltimore, said the intellectual property section usually draws a variety of practitioners at its sessions because of the topics it picks, such as craft beer last year. Fashion interests a broad base because everyone is affected by it.

“We’re all currently, hopefully, wearing clothes,” she said.

A recent development is the Supreme Court ruling in Star Athletica LLC v. Varsity Brands Inc., which Billig called a “sea change” in fashion intellectual property law because the court held there could be copyrightable aspects of cheerleading uniforms, which were previously deemed purely functional – serving to identify the wearer as a cheerleader – and not protected.

The case involved designs by Varsity Brads, the industry leader, which were copied by Star Athletica, which claimed the designs were driven by utilitarian concerns, not aesthetic ones. The Supreme Court, in March, found if there are graphic qualities that could be separated from the uniform and qualify as two-dimensional works of art, elements of the uniform could be copyrighted.

“The victory was for the plaintiff, who was the original designer, and applies on a broader scale to designs that, especially in the clothing industry, are considered functional,” Billig said.

Hawkins said the decision is so recent – and the case was remanded for ancillary issues – that cases testing the court’s ruling are not in the pipeline yet. He expects to see them soon.

The session at the annual meeting will give attorneys a chance to discuss the decision and other issues facing the field, organizers said.

“We want this to be kind of an interactive discussion more or less, not just talking at people about fashion and IP,” Hawkins said.