by Rather infamously, home furnishings is a knockoff-driven industry. Parsing the fine line that separates homage from trade dress infringement is difficult to do, both as an ethical question and as a distinction within the law.
Discovering this line as a matter of law can also be quite costly because someone will have to pay all those attorneys.
Earlier this month, Home News Now reported on a trade dress ruling from the Ninth Circuit in favor of the Jason Scott Collection. Upholding a district court decision, the Ninth Circuit Court of Appeals found that Texas-based Trendily Furniture had “intentionally copied” three of the Jason Scott Collection’s furniture designs.
One of my first beats covering the furniture industry was copyright and trade dress infringement, a beat that frequently took me to the U.S. District Court in downtown Greensboro. I remember, in particular, a big case brought against Klaussner by Natuzzi, a claim eventually settled out of court, which is how most cases in this area of the law get resolved.
Design in home furnishings, like composition in music or screenwriting in motion pictures, relies heavily on inspiration, pastiche and what has come before. Designs and even entire collections often are attempts to pay tribute to the past while also offering something new, or at least new-ish. This balancing act invites homage, even imitation. This balancing act begs the question: What is the legal difference between, say, influence and interpolation on the one hand and, on the other, appropriation and intellectual property theft?
Jump ball
“Intentionally copying” is a court determination that the derivative work has crossed the line. I have seen with my own eyes a successful look at retail in the United States being reverse-engineered in a factory far, far away. (I won’t mention any country names, but suffice to say here that in this particular factory, everyone spoke Chinese.) Evidence of reverse-engineering could be deemed evidence of intent, as well.
But, as with most areas of the law, there are few bright lines in intellectual property. The amount of copying or homage, as well as degree, substantiality and intent all play a role. So does human judgment, which is to say, subjectivity.
An article in the New Yorker this month on litigation embroiling musician Ed Sheeran put it this way: “The law, which represents the Apollonian side of human experience — the rational, analytical, and intellectual — is a leaky sieve for containing the Dionysian elements of music: the irrational, abstract and emotional parts.”
While a pineapple finial or a French filigree can’t be copyrighted, whole designs and the combination of elements they articulate can be. If these designs are “fixed in a tangible medium of expression,” they are protected, de facto, whether that tangible expression is a Tom Keller blueprint or a doodle Bill Faber scribbled on a napkin at lunch. The problem in furniture design, as in musical composition, is that there is scant little new under the sun.
And you can’t copyright a look, a vibe, an aura or trend. I remember one High Point Market when dozens of also-rans started their showroom tours with, “This is our Pottery Barn look.” Ah, I love the smell of gasoline in the morning.
Forum shopping
If all of this weren’t tricky enough, where a plaintiff sues can also make or break a case. Fortunately for the Jason Scott Collection, which is based in Phoenix, the Ninth Circuit is probably the U.S. Appeals Court with the most experience in IP cases of any of the 12 circuits. The Ninth covers California, so it regularly sees IP cases coming out of Hollywood and Silicon Valley.
Among the 94 U.S. District Courts? There is even more variety in experience and, therefore, sophistication in asking and answering the legal questions, even in determining the “right” legal questions to interrogate.
Copyright and trade dress are two different but intimately interrelated legal domains.
According to the Ninth’s 38-page ruling in favor of the Jason Scott Collection, “Considering similarity, proximity and retailer confusion, the panel held that because the products and marketing channels of the parties were nearly identical, the District Court did not err in its decision of confusion finding.”
Clearly, both the District Court and the Ninth honed in on, in the words of copyright law, “potential effect on the market” and, in the words of trade dress law, “market confusion.” Intellectual property law is founded upon the notion that creators will be more likely to share their ideas if the law grants them a limited monopoly on those ideas as they are expressed in a fixed or tangible medium. During this monopolistic honeymoon, these creators or those they designate should be able to make bank. That’s the emphasis in copyright law. The additional emphasis from trade dress (and trademark) law is avoiding market confusion.
As with most things, follow the money. No one knocks off something already rejected by the marketplace. “Where there’s a hit, there’s a writ,” as musicians such as Sheeran, Robin Thicke and Taylor Swift well know.
The devil made me do it
An interesting “what if” to pose in the Jason Scott Collection case is to wonder the outcome had there been no evidence of intent. George Harrison was found to have “accidentally” or unknowingly stolen the chord sequence in the 1963 Chiffons’ song, “He’s So Fine,” to create the hit, “My Sweet Lord.” You can hear it even as you hum the titles.
As the New Yorker article points out, Harrison likely experienced “cryptomnesia,” or the phenomenon of a forgotten memory accepted as an original idea. (This is very different from déjà vu amnesia, or the sense that you’ve forgotten all of this before.) For elaborate narrative use of this phenomenon, check out Charlie Kaufman’s bizarre Netflix film, “I’m Thinking of Ending Things.”
I, Robot
One last curveball to consider here: Artificial Intelligence. The law has absolutely no idea how to parse originality, homage, copying and theft in AI-generated art, music and perhaps some day furniture design. AI created the song “Heart on My Sleeve,” by mimicking the vocals of Drake and the Weeknd. The synthetic voices are singing something “generated,” which is to say new, or at least new-ish, but the generator trained itself by learning the music of these two artists.
What’s a copyright holder supposed to do? Sue the often-anonymous mashup artist using the AI? For what, precisely? For eerie verisimilitude in re-creating an overall sound esthetic? It’s a legal fractal.
Fortunately for furniture, many of these questions will be asked and answered long before they bubble up in home furnishings. There is so much money at stake in music, fan fiction and art, to name just a few industries scrambling on these issues.
Before I go and end this column on the law, this disclaimer: I am not a lawyer. I don’t even play one on TV. Nothing here, therefore, is or should be considered legal advice. Oh, if you read a column a lot like this one, with the same arcane references, syntax and insouciance, please let me know.
