MANHATTAN (CN) – A clothing company’s contract forcing a New York City second-grader to forfeit her copyright on the winning design in a school T-shirt contest may have been “unconscionable,” a federal judge found.
I.C., a student at P.S. 116 in Manhattan, entered the school’s “LittleMissMatched’s TEE OFF! PROJECT TEE” sweepstakes four years ago with a deceptively simple design of a smiley face with the word “Hi” on the front and a frown with the world “bye” on the back.
To enter, the parents and kids had to agree that the sponsoring company Miss Matched would treat every submission as a “work made for hire” – waiving all claims to the copyright of their drawings.
The girl’s mother Ellen Solovsky says that the company gave her child a $100 gift card and five T-shirts for her labor on products the company later sold.
Later that year, Miss Matched went belly up and sold its assets to Sock Drawer LLC.
That company passed on its stock to Delta Galil USA, whose parent company in Israel reported more than $800 million in revenue that year.
In 2014, the Copyright Office rejected I.C.’s application to copyright her “Hi/Bye” design.
Solovsky sued Sock Drawer and Delta Galil on behalf of her daughter in Manhattan Federal Court later that year.
On Tuesday, U.S. District Judge Gregory Woods rejected the idea that the mother’s signature on the contract precluded the case.
“That is not so; ‘a minor is not bound by a release executed by his parent,'” Woods wrote, quoting the Supreme Court’s holding in a case of a young wrestler injured in a tournament for which his father had signed a waiver.
Still, Woods refused to void the contract because that would put the child “in a superior position than at the time she entered the contest – owning the copyright to a design (assuming it is copyrightable) already featured in an extensive catalogue of clothing and accessories.”
The judge called for a hearing to decide whether the “disparity in bargaining power between I.C., a second grader, and Miss Matched, a sophisticated business,” made the contract “unconscionable,” but said he “has doubts” as to whether the mother and daughter could prove this.
“Although the prizes awarded were relatively modest, I.C. only owned a simple drawing at the time she submitted her contest entry – one whose creation was prompted by the contest itself – rather than a design supporting an entire catalogue of merchandise,” he wrote.
Sock Drawer is no longer making the “Hi/Bye” T-shirts, but it remains a party to the case because of the assets it sold to Delta Galil – which continues to sell them, according to the 29-page ruling.
While the companies argued that I.C.’s design was too simple to be protectable, Woods noted that copyright law has an “extremely low” bar for originality.
“Here, plaintiff chose to place the positive smiley face and the word ‘hi’ on the front of the shirt, greeting another person approaching the wearer; and chose to place the negative frowning face and the word “bye” on the back of the shirt, which another person would see when the wearer leaves,” Woods wrote. “Although the selection and arrangement of these elements may have only required a modest amount of creativity, that is all that is needed for plaintiff to survive a motion to dismiss.”
Lawyers for the parties did not immediately respond to a request for comment.
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