I am a seamstress. In order to save the cost of paying someone to design clothing and to avoid the risk that the design will not be successful I visit popular women’s clothing stores in Geula and photograph the items that are popular and then sew and sell the identical item. My husband recently told me that perhaps what I am doing is improper. Must I cease my practice?
Your question involves two issues that we previously discussed briefly in different contexts (See the articles from Parshas Shelach and Pinchas 5781 that are posted on our website www.dinonline.org). Since what you are doing is an application of a very common issue we will elaborate further.
We will see that even if you were to buy the clothing and then copy it, your behavior would be problematic. All the more so since you don’t even buy the clothing.
In order to understand the first issue we must make an introductory remark. Under Torah law there are various causes for requiring a person to pay money to someone else. There are the obvious reasons. If one steals from or damages someone he must pay because he took something away from his victim. If one hires someone to work he must pay the other party because he obligated himself to do so. However, in Torah law under certain circumstances one must even pay for a benefit he derives from someone else. It is this issue that this article will concentrate upon.
An example is where one’s animal eats someone else’s food that was on public property. The Torah rules that the animal’s owner is not liable for the damages that his animal caused to the owner of the food since the food was on public property. However, the Gemara (BK 20A) says the animal’s owner still must pay the owner of the food the value of the benefit that he derived from his animal’s having eaten the food. This usually is less than the full value of the food since the food typically costs more than what he would have otherwise spent to feed his animal.
The Gemara (BK 20B-21A) discusses whether one is liable if he derives benefit without causing any loss to the one from whom he benefited. The conclusion is that one is generally not liable unless the owner suffered a loss. However, it is important to note that even when the person from whom he benefited suffered a loss, the payment is still for the benefit he derived and not for the loss suffered. Thus, even if the loss is small nevertheless the one who benefited must pay for the entire benefit.
For example, if someone squatted on vacant property he is not liable if the owner did not suffer any loss. However, if he dirtied the walls of the property even slightly he must pay the entire benefit he derived from occupying the vacant property (i.e. rent) even when the cost to clean the walls is minimal. The P’nei Yehoshua (BK 20B) explains that the logic is that, as we mentioned, one is obligated to pay for a benefit he derives from someone else. However, if the one from whom the benefit is derived does not suffer any loss whatsoever, the one who benefited does not have to pay since it is midas sedom to prevent someone else from deriving benefit when there is no loss. However, if there is a loss, since midas sedom is no longer a factor, the one who benefits must pay in full for the benefit that he gained.
The case of a squatter is discussed in the Gemara and it represents the classical case where one who benefits must pay for the benefit he derived because he caused a loss to the one from whom he benefited. It is very important to note that in this case the benefit that the squatter derived came from the house that belonged to someone else, who we call the victim.
In a controversial ruling, the Noda Biyehuda (Tinyono CM 24) extended this principle further. He was asked to decide a dispute between a rov who published a Gemoro, with Rashi and Tosafos and his own commentary, and the rov’s printer. The basis for the dispute was that the rov had paid the printer for typesetting his sefer. However the printer, instead of just dismantling the type, as was common practice, used the type to publish a Gemoro with Rashi and Tosafos but without the rov’s commentary. The rov claimed the printer should pay him since he benefited from the typesetting that the rov had paid for.
The Noda Biyehuda sided with the rov reasoning that the printer’s reuse of the typesetting the rov had paid for, caused the rov to suffer a loss. The loss was that the rov would sell fewer copies of his sefer since some of his potential customers would now opt for the Gemoro that didn’t have his commentary.
For two reasons this is a landmark ruling. First, in the cases that were discussed by the Gemoro the one who benefited has to pay the owner of the object he benefited from. For example, the squatter pays the owner of the house. The owner of the animal pays the owner of the food. However, in this case the printer was the owner of the type. The rov had just paid the cost of typesetting and he got what he paid for. He did not own the type. It was the printer’s property and the printer could have dismantled the type. This objection was raised by both the Boruch Ta’am and the Yeshuas Malko (res. CM 22) who disagreed with the ruling of the Noda Biyehuda. However, we will see that many later poskim followed the Noda Biyehuda’s ruling.
The second novelty concerns the Noda Biyehuda’s extension of the concept of what constitutes a loss. In the cases discussed in the Gemoro there was an actual out-of-pocket loss. Perhaps it was small but there was a real loss. In the Noda Biyehuda’s case the loss was only a loss of potential profit.
However, the Amudei Eish (Page 67A-B) ruled exactly like the Noda Biyehuda in a situation which is almost identical to yours. One person took an elaborate course to learn the entire painting profession (including manufacturing the paint) and he took detailed notes which enabled him to work as a painter. Another person, without his permission, came and copied his notes and used them to learn the painting trade and compete with the first painter. The Amudei Eish ruled that the second painter had to pay the first painter because he gained by using the first painter’s notes, while causing a loss to the first painter because he took away potential customers.
Another authority who ruled like the Noda Biyehuda is the Divrei Malkiel (3, 157). The plaintiff in the dispute that was brought to him was a person who developed a product and obtained approval from the Polish Health Ministry to market his product, all of which entailed an outlay of money. The defendant had copied the first person’s product and marketed it using the identical stickers as the first person indicating that the product had the approval of the health ministry. The Divrei Malkiel ruled that the defendant had to pay the plaintiff because he profited from the plaintiff’s outlays in a manner that caused the plaintiff to lose potential customers (as well as other potential losses). He also ruled that the plaintiff has the right to force the defendant to cease marketing the product.
This was also the ruling of the Birkas Shlomo (CM 24). His ruling (post World War 2) was really a further extension of the previous rulings because in his case the plaintiff – who was the owner of the rights to print the Vilna Shas – no longer printed the Shas at all since the Nazis ym”sh had destroyed his press. Thus, he did not lose customers from the defendant’s reprinting and sale of the Vilna Shas. His loss was that by printing the Shas without paying for the right to print the Shas the defendant prevented the plaintiff from selling the rights to print the Shas to other publishers who would have otherwise paid for the rights.
Rav Zalman Nechemia Goldberg (Techumin Volume 6) discussed the same issue in the context of copying tapes. He claims that the extension of the Noda Biyehuda to the case where the printer derived benefit from his own letters is actually a dispute among the Rishonim and Acharonim. He writes that according to the Noda Biyehuda one who copies and sells tapes owes money to the one who made the original tape.
We should note that your practice of just taking pictures and not even buying the product that you copy is even worse since you are deriving benefit from the storeowner who owns the clothing and you are damaging him as well since he loses customers too. Therefore, even the Baruch Ta’am and Yeshuas Malko would agree that you are liable for the benefit you derive from your practice.
We should note that there are two other prohibitions that you may very well be violating-one is Rabbinic theft known as oni hemenakeif and the second is causing a person a loss of livelihood yoreid le’umnos chaveiro since you are engaged in an unfair practice in a manner that curtails your competition’s income. However, each of these requires an independent article.
In conclusion: You must cease your practice.
Note: This ruling applies only where the ones who suffer the loss are Torah observant. Since legally one is allowed to copy the design of clothing, the ruling would be different if the parties are not Torah observant Jews.