ABSTRACT
In the fashion industry, copyrights are being used offensively in a manner that stifles creativity. Companies register designs with the US Copyright Office that contain non-protectable public domain elements and then use their registration certificates as swords against unsuspecting third parties who use similar non-protectable elements or concepts in their own designs. Claims are also commonly made against designs appearing on garments that may not be sufficiently “original” to qualify for protection in the first place. Some law firms have created “sue and settle” business models that rely on extracting large settlements from often unwarranted claims. This occurs, in part, because the Copyright Office database is not sufficiently searchable, so a creator cannot know with reasonable certainty if another work exists that is potentially too similar to their own, or what elements of their work are in public domain. To reduce the number of warranted and unwarranted claims, the Copyright Office must create a searchable online database and claimants should be required by law to attach their full deposit copies to any infringement complaints.
