Monday, February 26, 2007

Is There a Copyright Under That Kilt?

The Canadian Broadcasting Company carried this story:

A tartan design with Nova Scotia roots is the subject of a lawsuit in the United States. In 1964, Sol Gilis of Yarmouth designed the tartan with the state of Maine in mind. Light blue for the sky, dark blue for the water, green for the forest, and a red bloodline for the people of Maine.
Jane Holmes of Plymouth, Maine, says she acquired the rights to the tartan design in 1993, and since then has overseen the manufacturing of the tartan cloth, which she has made in Scotland.
Holmes is suing U.S. retailer L.L. Bean for using the design in its Americana Tartan Shirt, claiming the company did not have permission to use it.

L.L. Bean is defending its use of the design, arguing the tartan is in the public domain because it is widely recognized as the state tartan of Maine. Holmes claims that's not the case and says Gilis might have been inspired by Maine when he made the tartan, but only she has the right to use the pattern. Holmes wants U.S. District Court in Maine to award her damages and stop L.L. Bean from selling any items with the tartan design. L.L. Bean has until March 19 to respond to the lawsuit in court.

A picture of the tartan and further information may be found here. L.L. Bean's argument that adoption by the state of the tartan resulted in the work falling into the public domain doesn't make sense. Since states can own copyright, had the work been created by Maine state employees, the copyright status of the work would not have been impaired. The work was, however, created in 1964, and I wonder whether proper notice was affixed during the relevant periods.


4 comments:

Rebecca Tushnet said...

It seems as if there may be some restoration issues here. If the tartan was designed in Scotland and entered the public domain for failure to comply with formalities like notice, the owner may be able to claim restoration rights.

William Patry said...

Or, perhaps, they are claiming rights in a work inspired by Scottish designs, but not technically derivative of them.

joshua wattles said...

Given the relatively low level of originality and new authorship to be found in a tartan design, how hard would it have been for L.L.Bean to evoke rather than copy the design? Maybe it will turn out that, by way of measurement, the LL Bean version has a slightly narrower or wider band of color here and there or that the red and the blues are slightly off owing to a re-interpretation by the Bangladeshian (?) factory. It might be enough to get them off the line...

Anonymous said...

Of course LL Bean will argue that they are entitled to use the Maine State Tartan. They are, after all, somewhat above what the common man would call fair. They have other items that use family tartans, and I really doubt they have permission. What you have to realize is that they (LL Bean) are a very large company, and will step on whoever thay have to to get their way. In other words, if you have 1 lawyer, they'll have 2, you get 3, they'll get 6...and now Cabela's is moving in on their territory, and frankly, that's a very good thing...Bean's has lost their direction...the products they sell are typical of upscale yuppie stores, rather than what a traditional outfitter would sell.
Yes, they have a nice return policy...I know, I work in the Returns department (giving people their money back for shoes they bought 5-10 years ago, wore until they fall apart, then claim they didn't fit...) Signed...an employee of the Great & Powerful Bean's