Vive la Different Way of Co-creating.

The French court decided a design case by a petit-mains, which are seamtresses who present design samples to major fashion houses, hoping to secure a contract to purchase.  Basically, the court issued a split decision, granting both sides damages that nearly offset, and ruling for each side on some claims.  The case highlights how in IP, the ‘old ways’ used in design industries – working without contracts or copyrights – hit up against the modern, rights-based rules of IP ownership.

Press reports leave it unclear whether the court rendered a verdict, with some oral explanation, or also issued a written opinion on the claims and their disposition.  The backstory is that Carmen Colle, grew a firm of seamtresses in France, and her products were adopted in the several major fashion lines.  A crocheted sample was presented to Chanel, but her offer was not accepted.  Later, Colle saw a finished garment, incorporating her sample design, being sold in a Chanel store in Asia.  She called it to Chanel’s attention, but no resolution was reached.  She sued for counterfeiting her design, and for breach of contract. Chanel cut off business to Colle, and countersued for commercial disparagement (based either on the suit allegations, or more likely, public comments by Colle about the alleged taking of her original design).  The historic practice of not copyrighting the designs (allowed under French law), and not having an agreement setting out ownership rights or limits on use without attribution, left Madam Colle without much of a remedy in court.

Consistent with modern IP practice – “get it in writing” is the norm.  Sure, software writers, screenplay editors, collaborators, etc., still put their creative contributions in the hands of others to use, or refuse, and often without an expectation of specific remuneration.  Old way -> bad; written IP agreements – > often best.

The further points of interest are how Chanel’s pre-trial defenses fit or misfit with the verdict.  Colle’s counterfeit charge was tossed out, but the reasons are not clear.  In pre-trial comments, Chanel’s stated defenses were either that the design was the result of specific instructions it gave to Colle, and/or that Chanel had used a design that was ‘at the very least a product of collaboration’ by the parties.  The first of those often arises with software or screenplays – write me a routine that performs these functions, or a story which has these plot elements.  Both wind back to the question of who owns, or has any rights to the end product, where only one person wrote the work, but the other suggested the content.  The second of those defenses, joint ownership or collaboration, is more an acknowledgment of the uncertain nature of the relationship.  If both own, that is, own an undivided joint interest in the work, then one cannot appropriate from the other entirely, but neither must account to the other for gains made from a joint work.

Madam Colle believed that the exchange of designs, as a step to reaching an agreement, was understood as a matter of “honour and justice and noblesse.”  Her lawsuit, however, provoked Chanel to point out the lack of a copyright and of a written understanding about ownership and exploitation of the disclosed designs.  Again, the ‘old way’ is passing away, supplanted with the ‘rely on rights and writings’ approach now necessary to those in the creative industries.