Judge Hands Down a Mixed Decision in the Highly-Watched Case Over Rival Crocheted Bikinis — The Fashion Law


In terms of her conversion claim, Ferrarini argues that by “registering the copyright in the design through a false claim of authorship, [Irgit] intentionally and substantially interfered with [Ferrarini’s] copyright, taking it as her own and misappropriating the funds derived from the copyright and litigation based on its registration” – namely, an infringement lawsuit and subsequent settlement with Victoria’s Secret – for her own personal use and enjoyment.” Siding with Irgit, the court held that the claim is preempted because it “‘assert[s] rights equivalent to those protected within the general scope’ of the Copyright Act.” And even if it was not preempted, Judge Schofield held that the claim is a losing battle, nonetheless, as “intellectual property cannot form the basis of an action for conversion.”Finally, the court turned its attention to Ferrarini’s claim of intentional interference with prospective economic advantage, in connection with which she alleged that Kiini got in the way of “[a]n economic relationship that existed between Ferrarini and third parties that purchased her bikinis [in Brazil] and/or were actively interested in or actually pursuing, developing, marketing, licensing, exploiting, and utilizing [her] one-of-a-kind bikinis.” To this, the court essentially said ‘not so fast,’ and dismissed the claim on the basis of preemption, while also stating that Ferrarini’s “allegations are too general and conclusory to be credited” as indicative of “a pre-existing, non-speculative relationship with third parties.” With those three claims out of the way, the court gave the green-light to let Ferrarini’s copyright infringement claim – which was added to the case after it was first filed (as Ferrarini only secured her copyright registration in April 2019) – go forward, holding that Ferrarini preliminarily made her infringement claim in a “sufficient [enough] factual matter, [that if] accepted as true, ‘states a claim to relief that is plausible on its face.’” To be exact, Judge Schofield determined that Ferrarini sufficiently made her copyright infringement claim and that such a claim is not barred by the statute of limitations, which is what counsel for Kiini argued. According to the court, despite Kiini’s argument that “the extensive press coverage of [its] bikini in 2014 and 2015, in combination with [its] registration of the copyright, is sufficient to have put [Ferrarini] on notice that Kiini claimed the design as [its] own,” and should have prompted her to file suit earlier, the court held that Ferrarini’s copyright claim “is timely because it accrued in 2018, when [she] was informed of the defendants’ infringement.” “Nothing in the complaint indicates that [Ferrarini] was aware of the defendants’ bikini sales prior to 2018,” according to the court, which noted that if “mere registration” with the Copyright Office were sufficient to put a plaintiff on notice of infringement, that would a “vastly burdensome” standard. In deciding the statute of limitations issue, the court noted that the “the threshold question” at hand is not about infringement, itself, but instead, involves a determination of ownership of the copyright at issue, since both the “plaintiff and the defendants have registered the bikini design with the U.S. Copyright Office.” Given that “any finding of infringement must be predicated on a finding of ownership of the copyright in question,” and since the “defendants do not concede that [Ferrarini] owns the copyright” at issue, what will certainly be up for debate are Ferrarini’s  and Kiini’s competing claims of ownership over the bikini design. As such, the case – minus the unfair competition, common law conversion, and intentional interference with prospective economic advantage claims – moves forward. *The case is Maria Solange Ferrarini v. Ipek Irgit, et al., 1:19-cv-00096 (SDNY).

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