By Tamar Duvdevani and Matthew Ganas
A relatively common problem affecting the fashion industry is claims of copyright infringement over designs that appear on clothing and other merchandise. In particular, retailers create product overseas, unaware that a print stated to be open source by an Asian manufacturing partner is actually a protected design. And, because ignorance is no excuse in copyright infringement, retailers are often penalized for infringement that they may view as innocent – even for use of “simple” designs that may not be perceived as protectable at all. But does this fact pattern create a finding of willful infringement, which confers additional penalties under the Act? According to a recent decision out of the Eleventh Circuit, the answer is no.