Whose pattern is it anyway?

I’d like to comment on a legal issue currently stirring online in the independent pattern design world, and that is: “When a pattern designer is employed by a business, or is an independent contractor hired for a business,  who owns the patterns she designs while working there: the designer, or the firm for which she works?”

Obviously, I’m not an attorney. However,

  • My mom was a paralegal (so I learned a lot about the legal system).
  • I’ve been on several juries in Manhattan and Boston (all civil cases, not criminal)
  • I’ve received a Cease and Desist (from Gerber, for using “Onesie” in an Etsy post)
  • My husband was sued for intellectual property infringement (he won).
  • I’ve been in the apparel business since I was  a teenager. I’ve worked part-time, full-time, freelance…in retail, wholesale, product development, patternmaking, and design. I’ve been interrogated on what I knew involving suits involving copyrighted fabric prints (at Victoria’s Secret) and price-fixing (at Saks Fifth Avenue).

So I know a little bit.  Caveat: this won’t be pretty. No pictures. But it’s not a pretty situation either.

The specific designers currently involved have both posted screenshots of previous conversations, so there are concrete facts to go by. (Keep in mind what Aristotle said: “Law is reason, free from passion“).  So, this this will be rational, non-emotional. Just as I write pattern reviews from a technical viewpoint, this post is based on facts (screenshots of conversations between the parties involved, not hearsay), plus my own experience.  I don’t know either of the designers personally, although I’ve purchased pdfs from both of them, and reviewed them in previous posts. Nobody asked me to write this.  But I will anyway, in the hopes that a very damaging lawsuit might be avoided.

Unless there is a specific agreement stating otherwise, design work done on the job, as part of the job description, using the company’s tools/software, as an employee or independent contractor hired by a business belongs not to the employee but rather to the company.  Designs become assets of the firm, and should the company be sold, the asset portfolio goes along with it. It’s not just visual design work….this also applies to:

  • patents for inventions created on the job
  • scientific discoveries
  • concept art and character development
  • stories and plot development
  • recipes and menus
  • architectural blueprints
  • logos and letterheads
  • trademarks
  • copyrights

This is an essential element of contract law, and also private property law. Without these legal rulings there would be chaos. No company would hire anyone for creative work, fearing that their employees could leave at a moment’s notice and create competition for the identical product. Businesses wouldn’t train their staff. Established designers wouldn’t share their knowledge. Fledgling designers would have less opportunity to learn from established designers, which is sad because mentoring is one of the best ways to learn.

Corporations would fold, and everyone would be forced to be a sole entrepreneur, which is not financially feasible for the vast majority of people who depend on others to establish companies and provide jobs and paychecks. Starting a business is expensive, unpredictable, and extremely risky. Most new businesses fail.  Most people don’t have the finances or the stomach for entrepreneurship. Don’t think so? Go watch Shark Tank.


There have been unusual legal cases regarding employee ownership of intellectual property, if the work was done outside of the job . The most famous is probably the  Mattel toys vs. MGA Entertainment lawsuit, also knows as Barbie/Bratz . A toy designer at Mattel toy company had an idea for an anti-Barbie and developed the concept art. He presented it to Mattel, they decided not to pursue it, and he later left Mattel to start his own firm, MGA . When his Bratz dolls became successful, Mattel sued, saying that it was their intellectual property, since he had the idea while at Mattel. The lawsuit and counter-suits went back and forth for years, and as usual the winners were the attorneys.

There’s also the question of work done after employment ends, but during the “non-compete” period (the designer in question had signed a non-compete clause) . My husband was sued for intellectual property during the non-compete phase. Peter is a physicist in the high tech semi-conductor field, where design secrets are protected just as in apparel design.  After being downsized from one company, he was enrolled in grad school (since he had a 1-year non-compete clause, he could not take a job in the same field). While earning his MBA, he came up with an idea for a revolutionary product. The prototypes were made at home from card-stock and brass brads taken from my scrap-booking stash.  He filed for a patent. After getting his degree he formed a new company, based around the new product. His former employer sued him, claiming that he had taken the idea from them while working there. The lawsuit was thrown out as being frivolous, since the firm had no records of developing any such product, and in fact the judge ruled for punishment damages: the firm had to pay my husbands legal fees in triplicate.  (This suit is now used in law schools that teach by the case method.)


What about the more cut-and-dry obvious issue of work completed while on the job, working for a company, under their directive, using their tools? Unless there is an agreement stating otherwise, all work done by employees or independent contractors while on the job belongs to the employer. Signing/cashing a paycheck implies agreement of payment-for-services. Even if there is no money involved, let’s say in an internship situation, showing up for work (in person or online) and working on projects construes employment, with all of the protections (for employers and employees) involved.

The work continues to be the owned by the company after the worker leaves. It makes no difference how the job ends: whether the worker left voluntarily, on good terms or bad, was downsized, or fired for cause. Taking any files, samples, reports, etc away from the place of employment is theft….whether real property or virtual. Even if the worker felt that they were underappreciated or underpaid for their work*, there is no excuse for trying to “balance” the compensation by taking what is owned by the business. The only thing worse than taking what is not yours, is using it to compete with your former employer.

*(If a worker feels they weren’t compensated correctly for work, then they should stick to that issue, and deal with it in the proper manner, whether that is through your Payroll/Human Resources department, or through Small Claims Court. )

In the particular pattern case, the designer created a pattern while working for a pdf company, under directive of the business owner, using the company software, and the pattern was published by the company she worked for, as a product of that company, on the company’s website.  Clients purchased the pattern from the company, under the company name….they did not purchase from the designer. As a pattern customer, I remember :

  • when she started out, selling custom apparel
  • when she was a tester for the pattern company
  • when she became a Brand Ambassador
  • when she joined the team as a designer
  • when the designs she created as part of the company were released
  • when she announced that she was leaving her employment
  • when she published patterns under her company name

I have followed both businesses (the one she worked for, and the one she owns) on FB, IG, Etsy, and their own websites.

She now says online (in a Facebook group) that she didn’t sign a contract stating that her work was the property of the company.  However, a “contract” does not need to be a specific piece of paper explaining every possible situation. Contract law includes implied consent. For example, if you sit down at a hair salon, or a restaurant, or a dentist’s office, that is an agreement that you will pay for services rendered. Sure, you may see signs in some medical offices explaining that payment is due at time of service: the reason for this is that most people (in the U.S.) “pay” for their medical bills through insurance plans, and therefore don’t expect to pay out of pocket. Depending on the billing methods at each medical facility, they may choose to have the clients pay upfront, then get reimbursed by insurance….or they may choose to submit bills to insurance companies first, then bill the client for the difference later. But either way, the contract remains: if you visit the doctor, you are agreeing that the doctor will be reimbursed by you or your insurance company.

In a cafe, a barbershop, a hot-dog stand….it is implied under contract law that if you request products or services and then partake of them, you will pay.  No paper signed “contract” required beforehand. Again, without this, life would be chaotic.  Imagine the wait at the McDonald’s drive-through if everyone had to sign a contract before placing an order.


Back to the pdf pattern issue. The designer in question worked (for a year) for an established indie  pattern company:

  • The company announced online her joining the company
  • She had an email address at the company,
  • She received drafting training by the company owner
  • She received public credit in the firm’s social media for the work
  • And she was financially compensated.

She then  left the company to start her own firm. Under what circumstances, I don’t know and it’s irrelevant. What IS relevant is the screenshot that I’ve seen where she sent a message to the company owner, endorsing their agreement that:

  1. The designs she worked on were the property of the company
  2. She would receive commissions on sales for a specific, limited, mutually agreed upon length of time.

Note that these are two very different contracts.  Any issues arising from #2 can easily be resolved in Small Claims Court.  Not so with #1….to reverse ownership both parties would need to agree upon a purchase: a transfer of assets.


 


Then she proceeded to release a pattern  identical to one that she had designed while working for the previous business, but now under her new label.  Not just a design inspired by styles she worked on (this is a tricky area in all design work..how can you shut off your brain completely from the influences and trends surrounding you?).  Rather a duplicate, “put the new pattern piece on top of the original and they are the same“, identical copy.

You can’t do that.  Okay, what’s to stop you?

  • ethics
  • honesty
  • common sense
  • understanding of property law
  • appreciation for the mentoring received
  • fear of lawsuit from the owner (a Cease and Desist from the business you worked for)

Graphic designers cannot take a font they developed on the job, and use it in their own independent work. Chefs cannot take a recipe they created while working at a restaurant job, using the restaurant’s kitchen and materials, as part of their job description and for which they were compensated, and serve it while freelance-catering. It’s unethical, it’s unkind, it would bar you from the industry for life.  Anyone doing this is branded as unemployable. Who wants a staff member who thinks it’s okay to take company property? In the design world, indeed in any business, intellectual property is the most valuable asset of all.

Yes, employee theft of steak and liquor in restaurants is a problem. Yes, fashion design firms have to deal with staff borrowing shoes and dresses to wear to events. But stealing a recipe, or a pattern?  A lesson I learned in merchandising school: Technical errors are usually forgiven; judgement errors are rarely forgiven. We all make technical mistakes at times, and they can be fixed….but poor judgment is a mark of character, which is deeply ingrained.  Or, as many a Human Resources professional will tell you “We hire for character and train for skill”.


In the apparel industry, there is really no such thing as identical patterns between businesses. All pattern departments start out by developing a basic fitting block. Then individual designs are created from those blocks. So whenever an employee goes out on her own, even if she carries ideas in her head about styles and trends that she’d like to develop, the patterns will never be the same as those from her previous job, because the fit will be be her own.

If Raf Simons leaves Jil Sander to work at Calvin Klein, he may design similar styles…but the patterns will be different, since each is based on the firm’s block, or base pattern. A pattern that is identical between firms can only be achieved through direct copying…which is theft.  That said, I don’t think the particular pdf pattern designer in the current brouhaha imagines herself to be doing anything wrong.  It seems to be a matter of absence of malice: she genuinely believes that since she designed a pattern, that she owns the copyright.  (On the other hand, maybe she doesn’t understand copyright at all: her pattern instructions include detail illustrations cut-and-pasted from published textbooks….)

I believe in the better part of human nature. I would like to believe  that the worker who re-published the pattern in question, did not do so with the intent to harm her former employer….the person who trained her, mentored her, gave her publicity, essentially launched her pattern career…and who was a close personal friend.  I hope that there was no malice intended, and that she just wanted to earn some money from the very successful style that she had worked on. I would like to believe she simply did not understand the nature of employment and contract law (even though she did have a non-compete agreement ).



Above all, I hope she drops the idea of a lawsuit (yes she has already “lawyered up”), and here’s why:

  • She can’t win. Selling a product that belongs to somebody else is against contract law.  All of the factual evidence supports that she was working for another company when she designed the pattern.
  • She may think that the profits from selling this pattern under her own label will be financially lucrative, but any income made by selling patterns will be cancelled out ten-fold by legal fees at several hundred dollars per hour. A lawsuit would require her to travel to the jurisdiction of the business where she worked for all court dates*, which can be extended for weeks  if not months. The emotional costs to her family could be enormous (been there!)

*Again, not an attorney here, however from what I’ve researched online, the lawsuit must be filed in the company’s jurisdiction.  The reason for this is to prevent frivolous suits. “In general, I believe the suit must be brought in the country where the person/company being sued is located. The law followed is the law of the jurisdiction specified in the contract between the parties–this is usually the location of the company being sued. So, if you’re in Britain suing someone in Virginia, US, it would be Virginia law.”   http://www.webhostingtalk.com/showthread.php?t=51381

“If you want that lawsuit to have any effect on the person you wish to hold accountable,
then you’d have to sue in that person’s location.” https://forums.digitalpoint.com/threads/is-it-possible-to-sue-someone-in-other-country.2215649/


It might be possible to file a case in small claims court, if it is a simple monetary matter of “I don’t think that I was paid enough for my work”.  But if the case is something more complicated such as “I think that I own the rights to this work and therefore can sell the pattern on my own site” then the judge would likely  decide that the case should go to trial. This is when the costs rack up rapidly. Both attorneys are allowed to question each potential member of the jury pool to see if they have any biases for/against businesses: “Do you own a business, have you worked for a business, do you like your boss, have you ever taken anything from your place of business.?” Both the plaintiff and defendant are being charged for  every minute of these interviews, at enormous rates.

Next is the discovery phase. Both attorneys may be  allowed access to all records and conversations that might have any bearing on the case. In my husband’s lawsuit, this meant that our computers, phones, banking statements and income tax bills were seized. Every file and email  was scrutinized. I was interrogated at length about what I knew of my husband’s business, his former employer, the employees he worked with there, my relationship to their wives, etc.  (In our case, we had close personal friendships, so this was emotionally brutal.) Once again, the lawyers are charging by the hour for this.

When the case finally comes to trial (depending on how many motions are filed, this can be months or even years later), the court case can drag on for days or weeks, meaning lots of travel, and expensive city parking, and repeatedly waiting in lines to go through metal detectors in and out of court buildings. If the case is not in your jurisdiction (not your choice!), you are responsible for travel and accommodations.

During the trial, both attorneys will likely bring in expert witnesses, at an additional several hundred dollars per hour (plus compensation for travel and accommodations).  this is added to the attorney fees.  Add it all up, and we’re talking about thousands of dollars per day.


 

I genuinely hope that this never goes to court. Even in the “best case scenario” for the plaintiff (the former employee), even if she wins the rights to the patterns she developed while working for a company….should she ever decide to go work for another design firm, nobody in their right mind would hire her. She would be banned from the industry. Talent and ability would not matter…refer back to hiring for character, not for skill.  Sad, because she does have talent.

Final word: as a customer (not an attorney) and as someone who has seen the IP-lawsuit process up close,  I would encourage  the staff-member-turned-independent-designer to please, for your own sake and the emotional well-being of your family:

  • Stop selling the pattern(s) in question.
  • Reimburse every customer who purchased it, along with an explanation that the design did not belong to you.
  • Submit the funds to your previous employer.
  • Publicly apologize for the misunderstanding.

 

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12 Responses to Whose pattern is it anyway?

  1. Jane says:

    Good story, and very true, only one thing could change the complete situation.

    The person involved was never employed by the other designer.
    It was a cooperation which very clearly agreed on that a part of the royalties would go to one company in exchange for knowledge on the designing software and using of the social network of the company to promote the design.

    There was absolutely no employment whatsoever.

  2. Theresa in Tucson says:

    Wow! This is a terrific post and I think a “must-read” for many.

  3. Ciara says:

    I have no idea what this brouhaha is all about, or who is involved, but this was still a fascinating post!

  4. 7pinedesign@comcast.net says:

    Not according to the many screenshots I’ve seen on FB/IG/BSD, which show that she was announced online as a staff member of the company, she worked on projects with the company, she was trained by the owner of the company on how to use the company’s software, she herself announced that she was leaving her employment at the company. Oh and she had a company email address. It would be pretty hard to convince a jury that she wasn’t employed there.

  5. That’s what I was going to say. Screenshots or it didn’t happen. Same goes for the alleged “cyber-bullying” that has been supposedly happening. You won’t see a screenshot because it didn’t happen.

    I keep hearing all this talk about going through the proper channels. I was promised an attorney letter three weeks ago. I’m still waiting for it to arrive. Those two business days sure are long.

  6. Sheila says:

    Ok. So according to US copyright law, a work created “for hire” means that the company paying for that service legally holds the copyright to the works created. The individual relinquished any legal claim to copyright when they accepted payment for the work involved in crafting said pattern. She was paid (I’ve seen proof) and accepted that payment. I’ve also seen proof where she says herself that the patterns belong to the constant she designed them for. These patterns that she designed under the company umbrella do not in any way, shape, or form legally belong to her any more. That’s just how the law works.

  7. 7pinedesign@comcast.net says:

    Sheila, I also have seen the screenshots of the message written by the worker to her former employer, stating their agreement that the patterns do indeed belong to the company, and that they have agreed on additional compensation for a specific percentage of sales, for a specific duration. These records would be presented foremost in the discovery phase of a trial, probably resulting in the case being tossed by the judge as being frivolous.

  8. 7pinedesign@comcast.net says:

    I have seen zero evidence of threats, intimidation or harassment (definition of cyber-bullying). On the other hand, I HAVE seen the accusation of cyber-bullying, which could constitute libel.

  9. JustGail says:

    Part of our company’s annual ethics training is – anyone leaving company A and going to work for company B may ABSOLUTELY NOT use designs or insider knowledge from company A as part of their work at company B. Such doings leaves company B open to lawsuits by company A, and in our case, fines and contracts lost by the the government, which in our case is our customer. The company owns any patents/copyrights for work done on company time, with company assets by any employee and we sign an agreement to such when we hire on, including contractors. Those who have obtained patents and copyrights (even for items not related to the company’s normal products) under their own names have had to very carefully document when and where it was developed, including tracking the purchase of any materials used.

    Sigh, and once again, I’m in the dark about the latest sewing world kerfluffle… :-)

  10. 7pinedesign@comcast.net says:

    Most likely your training is required by the firm’s legal department and liability insurance company. As an Executive Trainee intern at Saks Fifth Avenue, I had to attend a lecture (and sign understanding) about price-fixing, due to an unfortunate recent lawsuit. When I joined Victoria’s Secret, the company had recently been sued by Ralph Lauren for copying a fabric print, and the legal team jumped in to provide training. I wonder if it’s the natural result of our litigious society? I imagine that owner of the pattern company who took on this new designer….who was a fan and supporter of the firm, and had become a close friend…could not in her widest dreams have imagined of a scenario as the way this one played out.

  11. JustGail says:

    Absolutely the training and forms are due to the company learning from mistakes, unintended consequences and un-anticipated situations, their own and in other companies. And it’s big enough to have its own legal team keeping an eye out for any developments that show gaps in training or employment agreements that need addressing.

  12. 7pinedesign@comcast.net says:

    It’s just sad that small businesses….even a sole proprietorship where the owner brought on a supporter, a friend, to train her and help her move up from dressmaker to patternmaker….that she would need to bring in a legal team beforehand to sign forms stating that the worker would not take intellectual property from the firm. Think of how this situation, whether or not it ever goes to court, could affect independent pattern businesses going forward….who wants to provide a job when there is the overhanging cloud that your business could be destroyed?

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