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Fashion Distribution Agreements

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Biletsky Law - FashionThe time has come, the drawings are done and the sketches are ready to become a reality. The only thing missing now is…who is going to buy the product? Of course in many situations, this question comes up well before the design stages, but regardless of the stage of development that you are in, it is a question that needs to be answered.

For many designers and producers, a distribution agreement is the key to being able to commercially exploit a product. But before signing away the products that you’ve worked so hard on, it is important to have a grasp of what these agreements will mean for you and your product. Are you giving away too much? Are you being robbed of any credit? And of course, are you getting the maximum compensation and exposure possible?

How you obtain the distribution deal depends greatly on your goals, your product, the market and most of all, your connections. Once you have engaged the distributors and the deal is in motion, there are several important considerations to keep in mind.

Exclusivity

Similar to obtaining the deal itself, whether or not this distribution will be exclusive (either on your part or on theirs) depends on many factors. A larger distributor will likely have a multitude of designers and will not be exclusive to you. However, depending on the product line, you may be exclusive to them. This favors the distributor in that they know that because this product is being made exclusive to them, that they may be able to charge their clients more for the exclusive product and that they will have some leverage against you since you are not able to sell the product to anyone else.

Term

The term of the agreement will let you know how long this relationship is to last for. The term can be anything from just a season to several years. In addition to the initial term, there may be an automatic renewal of the term or it may need to be negotiated once the first term ends.

Purchase Order

As with most other things in this agreement, the purchase order depends on several things such as who the distributor is and what kind of product you are designing. In certain cases, especially when you are held to be exclusive to the distributor, the contracts may be either a “requirement contract“ or an “output contract.“ A requirement contract is a contract where the designer or owner delivers to the distributor as much of the product as they “require.“ An output agreement is one where the distributor will purchase everything that the owner is able to produce.

Purchase Price

The purchase price is usually what gets the designer or owner’s attention. These deals are often straight purchase orders for a bulk amount of the product either based on a unit price ($2 per shirt for instance) or based on the bulk amount ($2,000 for 1,000 shirts). These figures may vary depending on what kind of purchase order the distributor is putting in.

Conclusion

There are of course many other provisions that you should be aware of including quality control, storage, marketing, advertising, and credit. Each of these topics, like the rest of them, depends on who the parties are and what the product is. One of those provisions that a designer often regards as being important is credit. Depending on the product itself, there may not even be any credit provisions or they may be one that just requires that credit be provided on the product itself. Others may have requirements that the designer be provided credit in the area in which the product is being sold (think of the clothing department at a major retail store that says “designs by ______” or “by ______”).

What it all comes down to is that there are many deal points in distribution or licensing agreements and unless you are competent to negotiate each of these provisions, it is best to have an attorney who has experience with fashion distribution agreements to take care of this agreement for you. For assistance with your fashion legal needs, contact Biletsky Law.

 

What’s In A Copyright?

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Copyright Law

In modern society, copyrights come up more than you may notice. Basically every book, movie, television show, play, and drawing are subject to copyright laws. Understanding what exactly copyrights are and how copyright laws work will help give you a better understanding of the subject.

So let’s start with what a copyright is. Copyright law has a long history dating back several hundred years, but for now, we’ll focus on modern copyright law in the United States. A copyright is an exclusive right that allows someone to print, publish, perform, film, or record literary, artistic, or musical material. What that means is that the owner of the copyright controls how the copyright is used legally. An owner can license, transfer, or sell their copyright and that’s where most copyright owners are able to make money from their creation.

 

What does it take to have a copyright?

Owning a copyright is easy if you created an original work. In fact, you do not even need to go through the formal process of registration in order to own a copyright. Copyright is automatically granted once an original work is “fixed in a tangible medium of expression.” So let’s talk about what it takes to have a copyright:

Originality

It should come as no surprise that in order to have the copyright to something that it needs to be original. If this was not the case, everyone would just attempt to gain the copyrights to work that people had already created and the law would essentially be useless. Determining whether something is “original” can be a complex issue and courts around the country have wrestled with this issue time and time again. Whether you are able to use enough creativity to make someone else’s work original is a separate issue in and of itself, but if you are the original creator and have used creativity in the objects’ creation, you have likely met the requirement for originality.

Fixation

Fixation is a concept that may seem more complex to understand, but for most purposes, it is rather straight forward. Keep in mind however that this concept has continued to change along with the evolution of digital media. Putting many of the digital media issues aside, fixation comes from simply putting the work onto something “fixed.” When words are printed on pages, they are fixed. When a song is saved as an .mp3, it is fixed. When the frames of a movie are imprinted onto film, it is fixed. And well…you get the point, almost anything physical (or digital if it can be saved) will fulfill the fixation requirement.

So if you’ve used creativity to create an original piece of work that is fixed onto something tangible, you may have a copyright. Copyrights are automatic in that you do not need to register your work with the Copyright Office in order for you to have a valid copyright. Rather, as soon as it goes down on paper or is saved as a file, you receive copyright protection. The classic myth that you need to mail it to yourself or any of those shortcuts to copyright ownership is unnecessary. However, even if you do have the copyright to the work, you may still consider registering the copyright.

 

So why should I register?

Although you may automatically have a copyright, registration is still an important part of protecting your work. Here are some of the advantages of registration:

You can sue

In order to sue for copyright infringement you must have registered your copyright. Although you may still be able to bring a lawsuit against the infringing party, to bring a claim for copyright infringement, you need to register. In addition to this benefit, timely registration can provide you with even more benefits. Timely registration allows you the benefit of receiving statutory damages. Statutory damages range between $750 to $30,000 or can go up to $150,000 for willful infringement. Whether registration in timely depends on several other factors such as the date of publication of the work.

Biletsky Law Copyright Licensing

It makes things easier

Registering your copyright makes several things easier. First, it makes it easier for you to win a lawsuit. The reason for this is because it makes it harder for someone to argue that the infringement was innocent because registration provides notice to everyone that you are the owner of the work.

Registration also makes it easier to transfer, license, or sell your copyrighted work. In fact, certain agreements are not even possible without your work being registered. For example, agreements that lead to the production of films and television shows usually require purchase agreements for the underlying work. Many of these agreements require the copyright to be licensed or assigned to the other company. Without having your work copyrighted it may be harder to enter into these kinds of agreements.

 

Now what?

If you had not given serious consideration into registering your work with the U.S. Copyright Office, hopefully you’re thinking about it now. The Copyright Office has made it easy to register your copyright and the fee for doing so online is only $35 (as opposed to mailing in the registration which costs $65). Depending on the work, registration can be easily be done yourself or if there are complicating circumstances, a legal professional will be able to perform the necessary registration procedures.