Fashion Law

Van Cleef & All its IP

Are you a Van Cleef & Arpels fan?

Van Cleef & Arpels jewelry

I think their jewelry is beautiful, classic, a bit too expensive, and timeless. Here are some pictures of my favorite VCA items (courtesy of google images). 

VCA A day in Paris necklace, Une Journée à Paris

The cute charm necklace (above right) is from the Une Journée à Paris, or “Day in Paris” line.


Now on to the fashion law portion of the post…

The Parisian courts are full of fashion law! Aside from the Chanel case I reported last post, I recently learned of one with VCA!

Case background:
Thierry Berthelot, a VCA jewelry designer for 15 years, took VCA to court alleging that the designs he created for the fashion house were his intellectual property. Berthelot argued that since he created the designs he owned them.

The right to the IP in question belongs to VCA. The appeal court ruled against Berthelot finding that the designs were a product of a collective effort. Such collective efforts fall under works made for hire* and therefore are not owned by the creator(s). The owner of copyright in a collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

What to consider if you want to own the right to a creative work:

If you are the creator:
Copyright ownership usually vests in the creator(s) of a work; however, a work made for hire or within the scope of one’s employment is the property of the employer unless another agreement is validly contracted between the parties. Works made for hire do not have to be considered the property of the employer so if you want to remain the owner, say something and get the right in writing. And read below for what the employer who wants rights might consider.

If you are sourcing the work to someone else:
You want the person to create the work as a work made for hire. To prevent confusion it is best to write out a contract where you get the assignment of any copyright. Your contract should make clear who will be the owner of the work. There you can draft something along the lines of:

  • The Employee acknowledges that, by reason of being employed by the Employer, to the extent permitted by law, all of the Work Product consisting of copyrightable subject matter is “work made for hire” as defined in the Copyright Act of 1976 (17 U.S.C. § 101).  The Employer hereby owns such copyrights.  To the extent that the foregoing does not apply, the Employee hereby irrevocably assigns to the Employer, for no additional consideration, the Employee’s entire right, title and interest in and to all Work Product and Intellectual Property Rights therein, including the right to sue, counterclaim and recover for all past, present and future infringement, misappropriation or dilution thereof, and all rights corresponding thereto throughout the world.

While you are at it, you can throw in a moral rights clause. I have worked within a place that before me lacked moral rights clauses in work made for hire agreements and found themselves with hefty upkeep fees at the discretion of the artist who could also prevent movement of their work if such movement did not represent how the artist expected his work to be viewed:

  • To the extent any copyrights are assigned under this Agreement, the Employee hereby irrevocably waives, to the extent permitted by applicable law, any and all claims the Employee may now or hereafter have in any jurisdiction to all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as “moral rights” with respect to all Work Product and all Intellectual Property Rights therein.

If you cannot get the transfer of an IP work you can try getting the exclusive use to it since it is as good as transfer right 😉

    ♥ Thanks for reading and supporting my blog! 

    Definition of “work made for hire”:        1.  a work prepared by an employee within the scope of his or her employment; OR        2.  a work specially ordered or commissioned for use as a contribution to:a.      a collective work
    b.      as a part of a motion picture or other audiovisual work
    c.      as a translation
    d.      as a supplementary work
    e.      as a compilation
    f.       as an instructional text
    g.      as a test
    h.      as answer material for a test
    i.       or as an atlas
    3. AND if parties expressly agree in a signed written instrument that the work shall be considered a work made for hire.

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