Wednesday, January 25, 2012

H&M v. the Design on the Sign: The Limits of Copyright Protection

Photo from's post.
This morning my Facebook feed lead me to a post on discussing what it calls an alleged infringement of an artist's copyright by H&M. The blogger community is up in arms over the issue.
You can read the Regretsy post for all the facts (according to the sign's creator) but essentially it boils down to this:
  • Individual painted the sign on the left in 2008. The sign is located in a neighborhood in Atlanta, Georgia, USA. 
  • H&M in the UK (H&M is a Swedish company with worldwide subsidiaries) began selling doormats,and pillowcases with the design that is pictured at the right. It is not entirely clear when the sales began, but it seems like it was sometime in 2011. 
  • Friends of the sign's creator and the creator herself contacted H&M because they feel it is an infringement of her copyright. 
I'm not an attorney (and this post should not be construed as legal advice) but I'm currently studying international intellectual property and I'm not entirely convinced that H&M did anything that was illegal or a true violation of copyright laws. Here is my analysis:

Copyright is designed to protect "original works of authorship" that are fixed in a tangible medium. Examples of works that can be protected by copyright include all the usual suspects: literary works, music, drama, film, architecture, and works of art. But words, short phrases, familiar symbols or designs, mere variations of font, coloring, etc. are not accorded protection by U.S. Copyright. The sign, unfortunately for the creator but fortunately for H&M involves a short phrase ("You look nice today") and a familiar symbol ("heart) and the only real "artistic expression" that she put into it is the choice of font and coloring. Although it's not necessarily an iron-clad case against her, since the sign involves material that is not generally eligible for copyright protection it is highly unlikely that it would be considered a copyrightable work even in the United States.

Assuming, for the sake of argument, that the work is copyrightable in the U.S., H&M could still be found innocent if it independently created the design. Although the two designs are highly similar, given that the sign is only located in Atlanta, Georgia, and the H&M designers were probably located in Europe there is at least some plausibility that they never saw the sign. It would be an interesting court battle trying to prove that the designers had seen the sign and either intentionally or unintentionally copied it.

On another note, even if the United States recognized the sign as copyrightable it does not mean it would enjoy the same or similar protection in other countries. While there are Conventions and Treaties that make obtaining intellectual property protection in other countries easier if you already own intellectual property in one country, there is no automatic international protection. In this case the alleged infringing activity took place in the United Kingdom. The United Kingdom is a party to (among others) the Berne Convention and the TRIPS agreement as well as a bilateral treaty with the United States so it is likely it would recognize items with a US copyright as being protected, however, to understand the scope of that protection (and what would be an infringement) one would need to look at the UK's copyright laws. Furthemore, the UK could refuse to recognize the copyright of a particular item if it did not comply with their laws (ie. if it was an item that they did not recognize as being copyrightable).

There are other defenses that H&M could raise if it ends up in litigation (such as fair use) but in the interest of keeping this blog posting short, sweet, and interesting to those who are not lawyers or law students, I'm going to end my analysis there. I'm not saying that H&M (if its designers actually copied the design) acted morally, but they were likely acting within the confines of the law.

The moral of the story is that if you are going to make a work public and you want to prevent others from using it then it is advisable to understand how intellectual property is protected or to seek out the advice of an attorney before you publish it.

The US Copyright website is a wealth of information on copyright protection for non-lawyers. If you want to learn more the following links (to US Copyright Office publications) are a good resource:
Copyright Basics
International Copyright Basics
Information on Copyright Protection in Other Countries