Dear Rich: I am a designer who is new to patterning clothing for manufacturers. I agreed to work with a small clothing company and design and pattern pieces for them. Can they patent my patterns, or should I be patenting my patterns (to then potentially sell them to other businesses who are looking for stock patterns)? Do I automatically have the right to these patterns because I designed them, or do I actually have to patent them in order to "own" them? If I sell the patterns to the company without patenting them, do they then have the right to patent them and do what they want with them, or would I still maintain some rights over my work? Do clothing designs fall under creative ownership? It's virtually impossible to protect clothing designs in the U.S. (We discussed some of the issues in a previous
post.) Unlike European nations which offer a few years of protection to new fashion designs, U.S. protection for designs is zip, zilch and zero despite some wishy-washy
attempts to change the law. (This
article sums up the bad news.) The lack of protection is obviously a
boon to makers of fashion knockoffs and it has not diminished the need for designers; approximately
22,000 designers make a living in the U.S.
What's a designer to do? Because fashion is hard to protect, the industry has focused on the creators, rather than the creations. Designer names (which can be protected under trademark law) have tremendous value and designers can earn royalties on fashion that includes that trademark. Because you can't stop others from copying your designs, we urge you look for ways to get paid based upon the success of your designs. For example, in return for creating designs exclusively for a company, can you seek bonuses if sales of your work pass certain benchmarks? Can you receive royalties for successful items? In other words, try to be creative in the ways that you get paid.
