Fashion design copyright

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Fashion design copyright refers to the web of domestic and international laws that protect unique clothing or apparel designs. The roots of fashion design copyright may be traced in Europe to as early as the 15th century. [1]

Contents

As of 2016, in most countries (including the United States and the United Kingdom), fashion design does not have the same protection as other creative works (art, film, literature, etc.), because apparel (clothes, shoes, handbags, etc.) are classified as "functional items", except when copyright laws can be applied. This explains the success of the knockoff businesses to the detriment of established labels and emerging designers, the latter ones being especially damaged, because they rely on relatively few designs. [2]

History

French king Francis I [1] gave out specific privileges related to the production of textiles. By 1711, in Lyon, illegalities were already being defined in regards to fashion materials, and in 1787, in England and Scotland fashion designers had fruitfully pushed their needs for protection into basic legislation. In 1876 Germany began protecting fashion patterns as well as models, and in 2002 European regulation on designs that were new and provided an aspect of fresh character or aesthetic were brought under protection. [3] From 2004 to 2006 the "total production volume for clothing decreased by about 5% each year... [and by] 2006 the European union trade deficit for clothing was at 33.7 billion." [4] These statistics show that while there are benefits of their advanced design legislation, the economic and external factors still hindered their industry growth in ways the U.S. can empathize with. As 2007 came to a close, WIPO, or the World Intellectual Property Organization, had registered twenty-nine international designs. [5]

Current regulation

The protection of fashion design varies greatly from one country to the other. [2]

European Union

Unlike in the USA, when the laws regarding the clothing industry were created in Europe, the continent had a booming fashion industry that already started to reshape the clothing manufacturing industry. [6]

In the European Union, the Creative Designs Directive and the European Designs Directive are in effect to protect new designs for three or five years. [2] The European Union Intellectual Property Office are responsible for managing intellectual property in the EU. [7] Registered community designs (RCDs) offer protection for up to 25 years, provided the design is new and distinctive. RCDs can be renewed every 5 years. [8] On the other hand, unregistered community designs (UCDs) automatically protect designs for 3 years without the need for registration, but they only guard against proven copying. [9]

United States

The US laws written in 1976 identify fashion as a manufacturing industry rather than a creative one, because fashion design had not reshaped the clothing manufacturing industry yet. [6] The Digital Millennium Copyright Act (DMCA) of 1998 originally brought more limits to fashion design copyrighting, but a sui generis protection to the design of vessel hulls (DMCA-Title V: Vessel Hull Design Protection Act or VHDPA) was included to give more protection to some useful articles. The House of Representatives deemed fit to enable tighter fashion design copyrights through an extension of the VHDPA. [10] There is no official design rights system, so brands and companies have to use design patents (a technical component of the design) and trademarks (names, slogans, logos) to "copyright" their products. Another option for highly-recognizable fashion designs is to register it as a trade dress with the United States Patent and Trademark Office (ex Hermès and the Birkin bag). [2] [6]

In the 2017 Supreme Court case. Star Athletica, LLC v. Varsity Brands, Inc., it was ruled that Fashion design can be covered by copyright.

...an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article. [11]

This decision enhanced the protection of unique fashion works, which are often knocked off by fast-fashion retailers who turn the vast grey area of fashion copyrights into a profit. [12]

Infringement cases

From 2009 to 2018, Gucci and Guess were in a copyrights feud over the use of a logo: Courts in the USA, China and Australia had ruled in favor of Gucci, while courts in France and Italy had ruled in favor of Guess. [13]

In 2010, Alexander McQueen destroyed all its products containing the Hells Angels' trademarked winged death heads symbol after the motorcycle club threatened to sue. [13]

In the 2012 case of Yves Saint Laurent v. Christian Louboutin, a court ruled that a brand could reuse Louboutin's signature red on shoes as long as the whole shoe is covered in red, because having only the soles in red was indeed a copyright violation. [13]

In the UK, in the 2023 case of Adidas v. Thom Browne, a court ruled that Adidas' 3-stripe signature could be used by other brands. [13]

Societal impact

Researcher Johanna Blakley argues that the very lack of regulation of fashion design has allowed the fashion industry to do very well economically and has led to the birth of fast fashion and a much faster changing of fashion trends and has enabled pieces of clothing to become pieces of art. She also refers to Tom Ford pointing out that the people who buy cheap lookalikes are a different demographic compared with people who buy the original very high-end products and that while many exclusive designers get copied, also the high end designers often attribute the inspiration of their creations to following street fashion, so the copying is a two-way street. [14]

Digital fashion copyrights

When a garment is replicated digitally, the copyrights holder of the physical garment does not necessarily remain the copyrights holder of the digital garment. For example, if a design agency does 3D applications for a fashion company, those 3D animations belong to the agency. Licence agreements are essential if several agencies are involved. Facing digitization, the fashion industry may go through the same disruption the music and film industries went through. [15]

The Hermès v. MetaBirkins case, the copyrights holder of the Birkin bag, the Hermès group, filed a lawsuit against the company MetaBirkins which had created an almost identical NFT bag sold $450 apiece. It was ruled in 2023 that NFTs were not protected by the First Amendment and had to respect copyrighted fashion designs. [13]

See also

Related Research Articles

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Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, copyrights, trademarks, and trade secrets. The modern concept of intellectual property developed in England in the 17th and 18th centuries. The term "intellectual property" began to be used in the 19th century, though it was not until the late 20th century that intellectual property became commonplace in most of the world's legal systems.

<span class="mw-page-title-main">WIPO Copyright Treaty</span>

The World Intellectual Property Organization Copyright Treaty is an international treaty on copyright law adopted by the member states of the World Intellectual Property Organization (WIPO) in 1996. It provides additional protections for copyright to respond to advances in information technology since the formation of previous copyright treaties before it. As of August 2023, the treaty has 115 contracting parties. The WCT and WIPO Performances and Phonograms Treaty, are together termed WIPO "internet treaties".

<span class="mw-page-title-main">World Intellectual Property Organization</span> Specialised agency of the United Nations

The World Intellectual Property Organization is one of the 15 specialized agencies of the United Nations (UN). Pursuant to the 1967 Convention Establishing the World Intellectual Property Organization, WIPO was created to promote and protect intellectual property (IP) across the world by cooperating with countries as well as international organizations. It began operations on 26 April 1970 when the convention entered into force. The current Director General is Singaporean Daren Tang, former head of the Intellectual Property Office of Singapore, who began his term on 1 October 2020.

<span class="mw-page-title-main">Industrial design right</span> Intellectual property rights

An industrial design right is an intellectual property right that protects the visual design of objects that are purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft.

Fashion law deals with legal issues that impact the fashion industry. Fundamental issues in fashion law include intellectual property, business, and finance, with subcategories ranging from employment and labor law to real estate, international trade, and government regulation. Fashion law also includes related areas such as textile production, modelling, media, the cosmetics and perfume industries, questions of safety and sustainability, dress codes and religious apparel, consumer culture, privacy and wearable tech, and civil rights. Clothing laws varies by country.

<span class="mw-page-title-main">Industrial property</span> Intellectual property applied to industry

Industrial property is one of two subsets of intellectual property, it takes a range of forms, including patents for inventions, industrial designs, trademarks, service marks, layout-designs of integrated circuits, commercial names and designations, geographical indications and protection against unfair competition. In some cases, aspects of intellectual creation, although present, are less clearly defined. The object of industrial property consists of signs conveying information, in particular to consumers, regarding products and services offered on the market. Protection is directed against unauthorized use of such signs that could mislead consumers, and against misleading practices in general.

Intellectual property rights (IPRs) have been acknowledged and protected in China since 1980. China has acceded to the major international conventions on protection of rights to intellectual property. Domestically, protection of intellectual property law has also been established by government legislation, administrative regulations, and decrees in the areas of trademark, copyright, and patent.

<span class="mw-page-title-main">Hermès</span> French luxury goods manufacturer

Hermès International S.A. is a French luxury design house established on June 15th 1837. It specializes in leather goods, lifestyle accessories, home furnishings, perfumery, jewelry, watches and ready-to-wear. Since the 1950s, its logo has been a depiction of a ducal horse-drawn carriage.

<span class="mw-page-title-main">Designer clothing</span> Expensive luxury clothing

Designer clothing is clothing designed by a particular fashion designer or licensed by a person or brand. It is often luxury clothing proven to be high quality and haute couture for the general public, made by, or carrying the label of, a well-known designer. Licensing of designer names has been a common practice within the fashion industry since about the 1970s. Designer clothing comprises numerous types of apparel, including designer jeans that often cost several hundreds of dollars.

<span class="mw-page-title-main">Functionality doctrine</span> Prevention of trademarking a products features

In United States trademark law, the functionality doctrine prevents manufacturers from protecting specific features of a product by means of trademark law. There are two branches of the functionality doctrine: utilitarian functionality and aesthetic functionality. The rationale behind functionality doctrine is that product markets would not be truly competitive if newcomers could not make a product with a feature that consumers demand. Utilitarian functionality provides grounds to deny federal trademark protection to product features which do something useful. Patent law, not trademark, protects useful processes, machines, and material inventions. Patented designs are presumed to be functional until proven otherwise. Aesthetic functionality provides grounds to deny trademark protection to design features which are included to make the product more aesthetically appealing and commercially desirable. Aesthetic features are within the purview of copyright law, which provides protection to creative and original works of authorship.

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<span class="mw-page-title-main">It bag</span> Popular designer handbag

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<span class="mw-page-title-main">Outline of intellectual property</span> Overview of and topical guide to intellectual property

The following outline is provided as an overview of and topical guide to intellectual property:

<span class="mw-page-title-main">Limitations and exceptions to copyright</span> Provisions which allow for copyrighted works to be used without a license from the copyright owner

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<span class="mw-page-title-main">Digital Millennium Copyright Act</span> United States copyright law

The Digital Millennium Copyright Act (DMCA) is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet. Passed on October 12, 1998, by a unanimous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA amended Title 17 of the United States Code to extend the reach of copyright, while limiting the liability of the providers of online services for copyright infringement by their users.

<span class="mw-page-title-main">Intellectual property in Iran</span>

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<span class="mw-page-title-main">Susan Scafidi</span>

Susan Scafidi is an American lawyer, legal scholar, advocate, nonprofit executive, and commentator. The first professor to offer a formal course on fashion law at a U.S. law school, she is the founder and president of the Fashion Law Institute, a nonprofit organization located at the Fordham University School of Law in New York City.

In the 2017 Supreme Court case. Star Athletica, LLC v. Varsity Brands, Inc., it was ruled that Fashion design can be covered by copyright.

...an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.

Star Athletica, LLC v. Varsity Brands, Inc., 580 U.S. ___ (2017), was a U.S. Supreme Court case in which the court decided under what circumstances aesthetic elements of "useful articles" can be restricted by copyright law. The Court created a two-prong "separability" test, granting copyrightability based on separate identification and independent existence; the aesthetic elements must be identifiable as art if mentally separated from the article's practical use, and must qualify as copyrightable pictorial, graphic, or sculptural works if expressed in any medium.

The protection of intellectual property (IP) of video games through copyright, patents, and trademarks, shares similar issues with the copyrightability of software as a relatively new area of IP law. The video game industry itself is built on the nature of reusing game concepts from prior games to create new gameplay styles but bounded by illegally direct cloning of existing games, and has made defining intellectual property protections difficult since it is not a fixed medium.

References

  1. 1 2 Salmon, J.H.M. "Francis I (France)." Encyclopedia. Issues & Controversies. Facts On File News Services, n.d. Web. 4 Mar. 2013
  2. 1 2 3 4 "What are the consequences of copycats?", by Helena Pike, March 14, 2016, Business of Fashion
  3. ↑ (Fischer Par. 8)
  4. ↑ (Fischer Par. 2)
  5. ↑ Fischer, Fridolin. "Design Law in the European Fashion Sector" WIPO February 2008. Web. 10 Feb 2013
  6. 1 2 3 Lieber, Chavie (2018-04-27). "Fashion brands steal design ideas all the time. And it's completely legal". Vox. Retrieved 2023-12-16.
  7. ↑ "The European Union Intellectual Property Office - About Us". euipo.europa.eu. The European Union Intellectual Property Office. Retrieved 26 March 2024.
  8. ↑ "Upcoming Changes to Registered Community Designs". Mason Hayes & Curran. mhc.ie. Retrieved 26 March 2024.
  9. ↑ "IP in the Fashion Industry". Mason Hayes & Curran. mhc.ie. Retrieved 26 March 2024.
  10. ↑ "U.S. Copyright Office - Protection for Fashion Design". www.copyright.gov. Retrieved 2023-12-13.
  11. ↑ Star Athletica, slip op. at 11.
  12. ↑ "Designs – protecting fashion in the United States with IP rights". www.worldtrademarkreview.com. Retrieved 2023-12-16.
  13. 1 2 3 4 5 "8 Fashion Lawsuits to Remember — Fashion Lawsuits Dior John Galliano Guess Gucci". L'Officiel USA. Retrieved 2023-12-13.
  14. ↑ Johanna Blakley: Lessons from fashion's free culture TED Talk, 2010
  15. ↑ Roberts-Islam, Brooke. "Digital Fashion: Who Really Owns The IP Rights?". Forbes. Retrieved 2023-12-16.
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