"Is Copying Designs for Accessories and Dresses Illegal? We Asked a Lawyer!"

2019.04.19 published

Is It Copying If You Make Something Similar?

Hello, I am Haruno Tsuzaki, the editor-in-chief of marry.

Recently, I received an inquiry from a bride-to-be.

(I will withhold any content that could identify the individual!)

*****Summary*****

I have a question for marry.

My friend, Ms. A, sells handmade wedding items.

Recently, I discovered on Instagram that another person, Ms. B, is selling items with a design similar to A's.

Chronologically, I believe A started making them first.

Isn’t B copying A, and might this constitute copyright infringement?

**********

In the wedding genre and beyond, there are many products in the world.

There are items made and sold by companies, those created and sold by handmade artisans, and those made for personal enjoyment.

Among them, there are of course many products and items with similar designs or categories.

Is it true that all of these would be considered “copying” by anyone other than the original creator?

Is it permissible to accuse someone of "copying"?

I consulted a lawyer.

Q1: Is it illegal to imitate designs that already exist in the world?

<Lawyer's Answer>

First, let’s explain the difference between "design" and "idea."

In everyday life, I think it’s rare to clearly define and differentiate between "design" and "idea," but from a legal perspective, especially concerning copyright, these two are completely different things.

"Design" is something expressed through artistic activities with unique ingenuity. It's easy to understand if you think of painting, sculpture, or photography.

Imitating an expressed "design" can potentially constitute copyright infringement.

Copyright is a right that arises automatically when a piece of work is created (expressed), without the need for prior registration.

The purpose is to contribute to the development of culture by protecting creative activities and so on.

On the other hand, "idea" refers not to the expressed creations but rather to a kind of thought, feeling, or information.

Ideas themselves are not protected by copyright. The only exceptions are those that are registered as patents or utility models.

Society, especially industry (commerce), has advanced by refining and evolving past ideas.

The smartphones and home appliances around us have evolved through competition among companies based on the ideas of earlier inventions.

While violating another's registered patent or utility model rights is illegal, imitating other people's ideas is not illegal.

Q2: What is the specific difference between "design" and "idea"?

<Lawyer's Answer>

For example, think of the well-known anime character "Hello Kitty."

The character "Hello Kitty" is a design, but simply stating "a two-legged cat character wearing clothes and a bow on its head" is just an idea.

If you imitate the expressed "Hello Kitty" design and use it as your own, that constitutes imitation of the "design," and you would infringe on the copyright held by the "Hello Kitty" copyright holder.

However, since "a two-legged cat wearing clothes with a bow on its head" is an idea, you are free to create an original character based on that idea or draw and publish an illustration.

Q3: So in the case being consulted about, does it fall into "design" or "idea"?

<Lawyer's Answer>

Of course, the products in question have both "design" and "idea" aspects.

Therefore, the critical point is which aspect—"design" or "idea"—is shared (what was imitated).

In this case, it falls under a situation where the shared aspect is not the visual "design" or expressed "design," but rather the "idea" of how to combine materials to create the items.

In other words, because we cannot definitively say that the "design" is common, I don’t believe this is a case where copyright infringement is an issue.

Copyright in design arises from artistic activities that involve works such as painting, photography, and sculpture.

This is not an issue of whether it is highly artistic or not; rather, it means that "creatively expressed works belong to literary, academic, artistic, or musical domains are defined as copyrightable works."

If it meets this definition, even a child's drawing can be considered a copyrighted work.

From that perspective, even if something is creatively expressed, industrial goods or practical items are subject to design rights, and unless they have high artistic value, they are generally not protected by copyright.

Additionally, for copyright infringement to occur, it also requires that the original work is imitated. If someone happened to create something similar by chance, it wouldn’t constitute copyright infringement.

It is impossible to be aware of all products in the world and check for similarities before creating a product.

While patents are straightforward as they undergo examination before registration, even if someone is accused of copying someone else’s work,

whether or not that work qualifies as a "copyrighted work," and whether the act of imitation constitutes "copyright infringement," must be contested in court, and only if the plaintiff wins will it be considered "copyright infringement."

Whether or not copyright is being infringed is determined through litigation, so strictly speaking, until a court ruling is finalized, it is merely a state of "potential copyright infringement."

Q4: What about "trademark registration" and "design registration"?

<Lawyer's Answer>

For rights protection concerning items that are not protected by copyright, there are trademark registration and design registration.

Famous characters and brands are trademarked, and industrial products are design registered to protect those rights. For trademarked or design-registered items, imitation as products is not permitted.

If you sell handmade items using a registered renowned character, I think you would lose a lawsuit.

Q5: If Ms. A had trademark or design registration, would Ms. B be acting illegally?

<Lawyer's Answer>

In this case, it is not about design or branding, but merely an "idea," so trademark or design registration is not feasible. It seems out of the question...

However, hypothetically, if Ms. A had trademarked or design registered a brand, and Ms. B used A’s brand on similar designs, that would be illegal.

Also, if hypothetically, Ms. A had patented the idea of combining materials, then if B imitated that "idea" and created and sold similar products, it would be a patent infringement and thus illegal.

Q6: So we should be careful not to easily shout "We’re being infringed!"

<Lawyer's Answer>

Well, while expressing your feeling that "this is copyright infringement" is free to do,

as I mentioned earlier, copyright infringement is uncertain until resolved in court; therefore, if you spread information saying "that product is copyright infringement; you shouldn’t buy it," when it turns out that it isn’t, you could be sued for tortious interference for spreading false information, and it might also fall under the violation of unfair competition prevention laws.

Just as expressing dissatisfaction about service or taste in a restaurant is protected as free speech, spreading false information, like saying "There were cockroaches at that ramen shop," could constitute illegal business interference.

Q7: Isn't "copying" different from copyright infringement in nuance?

<Lawyer's Answer>

That's right. Aside from actual copyright infringement cases, “copying” conveys "to imitate" or "to reference," suggesting it is done with malice. Originally, it means "to steal."

Furthermore, law and ethics are different. What we are talking about is whether something is legal or illegal. Just because it's not illegal doesn’t mean it is necessarily ethical; some individuals may feel resistance toward similar items being imitated. This is a matter of personal feelings, and it is not something that can be judged as right or wrong.

Let’s all work together to make the world better ♡

The explanation provided by the lawyer regarding the differences between "design" and "idea," and copyright, was summarized like this.

In response to the initial question received,

“Even if one is imitating or referencing, from a legal standpoint, Ms. B is not infringing on Ms. A's copyright. While it is free to feel unhappy about it, no one has the right to accuse or blame Ms. B online as a “copycat.”

After all, we must not forget that the world exists because of a collection of various ideas from predecessors.

To bring up the story of Royal Asscher, they once relinquished the diamond cutting technology they had commercially patented for the advancement of society. This greatly helped the jewelry industry to grow.

It’s worth noting that there is virtue in legally asserting rights, but also virtue in not asserting rights.

(Of course, there is also a virtue in choosing not to buy imitations that are legally acceptable.)

The initial lettered objects adorned with artificial flowers and the garlands that everyone freely DIYs were originally ideas conceived by someone overseas.

Recent popular items like capiz shell name cards and agate place cards are similar.

If all these were to be declared, “You must not imitate! Ms. A originally created that! Everyone else is copying!”…

We might not even be able to create wedding cakes or wear veils.

It’s crucial to be cautious about judging people or situations with ambiguous knowledge and terminology that do not align with current laws and facts and directing malice toward others.