IP & Your Dress Design

The industry of fashion is based upon the creativity, innovativeness and dynamics of certain trends. Designers have so much zeal and dedication they apply to come up with unique garments imagining the pieces during their prestigious runways and blessed in wardrobes globally. However, outside the glitz and beauty there is another aspect of fashion that is not as conspicuous but quite as important; the laws that cover the fashion and intellectual property (IP). A question that has always kept cropping up in this area and has been debatable is quite deceptive and simple to ask but difficult to answer- So can a dress be copyrighted?

As opposed to books, songs or paintings, garments are often characterized as being useful articles, that is, they have some practical purpose. Such a classification directly affects their ability to gain any copyright protection. This has been causing a legal limbo on the part of the designer, as s/he tries to cover the artwork against all forms of plagiarism and piracy. The paper will take a look at the interrelationship fashion and intellectual property law which will entail focusing on the issue of copyrighting clothing, and the rights that are open to the designer to safeguard his/her original designs in a fast paced and competitive environment of the global market.

Fashion is a successful industry that exists at a global level and has a turnover of billions of dollars characterized by high innovation and changing trends. However, the dynamisms also make it prone to imitation and the pervading aspect of counterfeiting. In companies creation safeguarding is of much importance and this is especially true in the sphere of fashion design and its labels, as it is originally sought to protect not only artistic visions but also marketing and retaining a particular brand. Now that we know a bit more about the types of intellectual property protection, it is worthwhile to see how each of them plays out within the fashion sphere before moving on to debating whether a garment such as a dress can be copyrighted.

Intellectual Property in the fashion industry encompasses several legal avenues, each offering distinct forms of protection:

Copyright: This Act guard original works of authorship such as literary, dramatic, musical, or even some artistic works. Copyright in fashion can be applied over certain members of a design that is determined as an artistic art of a certain original design, e.g. textile prints, graphic designs, patterns, and even sometimes the original sketch itself. The most problematic issue with copyrighting a dress is the so-called useful article doctrine, according to which the functional item should not be subject to any copyright.

Trademark: Trademarks are used to secure the brand attributes like name, logo, tagline, special combinations of colors and the physical look of merchandise commonly known as a trade dress. The identifiers are vital in differentiating a brand in a busy market place, as well as creating consumer recognition and trust in a brand. The classic example is red soles that are famous thanks to Christian Louboutin or a particular check pattern of the Burberry which are legally secured by being registered as a trademark.

Design Patent (or Registered Design/Industrial Design Rights): This kind of intellectual property right is focused on the aesthetic or ornamental design of a practical object. Design protection, compared to copyright, which also protects an original artistic expression, solely addresses the visual, aesthetical features of an object, its nonfunctional appearance, i.e. shape, form, or surface decoration of the product. This is especially suitable in the fashion industry where protection of 3 dimensional attractions of clothing and accessories is involved where the fashion looks outward but not practical.

Utility Patent: Utility patents are meant to shield a novel and useful invention, albeit the patents are not commonly applied in common regular garment designs. This not only covers these but also covers new processes, machines, created items or its compositions, and modifications to anything. Other types of patents Usefulness patents can be pertinent within the fashion sector in the case of novel materials (e.g. self-cleaning material, smart textile) or methods of production, and usability features on performance or technical clothing.

A big problem with copyright protection of a dress particularly in United States is due to the doctrine of a useful article. A dress as the practical item that fulfils such functional roles as covering a human body and decorating it is categorized as a utilitarian object. The copyright law usually creates a strong distinction between works of pure expression and practical work. To fall under copyright protection, any artistic traits of a useful object such as a dress should be made recognizable to the purpose of the garment and potentially exist in form of art work-in-itself.

The legal issue covered in the case of Star Athletica, L.L.C. v. Varsity Brands, Inc (2017), was precisely related to this. In this case, the designs of cheerleading uniforms were the issue in the case and they included different stripes, chevrons, and blocks of colors. These designs were two-dimensional works of art copyrighted by Varsity brands. Star Athletica claimed that the designs could not be severed with the workable uniforms and therefore unable to be copyrighted.

In an important decision to the fashion industry, the Supreme Court ruled in favor of the Varsity Brands. It set up two-part test that distinguishes the copyright ability of design features on the useful articles:

Is the design aspect in form of two or three dimension art work distinct of the useful article? This means imagining the design element existing independently, perhaps as a standalone artwork.

Imagining the design feature in a vacuum other than a useful article, would the feature qualify as a protectable pictorial, graphic, or sculptural work, or in some other medium? This asks if the separated design would meet the basic requirements for copyright protection.

Using this test, the Court concluded that the designs of the cheerleading uniforms were separable and would pass this test to assume the two-dimensional audio-visual work. This decision clarified, although not simplified, a method in which some creative aspect of garment designs were grantable copyright protection. It made clear that on its surface an otherwise non-copyrightable shape or cut of a garment, original surface patterns, prints, and graphic embellishments often can be qualified.

In India, the protection of fashion designs involves interplay between the Copyright Act of 1957 and the Designs Act of 2000.

Designs Act, 2000: The act constitutes the main legislation on protection of the aesthetics of the industrial designs. It gives exclusive rights to the owner of registered design a ten year privilege that is further renewable by a five year period. A design should be new or original and that it is applied to an article, by an industrial process, in order to be registered. This guards the total aesthetics such as the form, structure, design, and embellishment of a clothing piece.

Copyright Act, 1957: Whereas the provision of Copyright safeguards original literary and artistic works it is not applicable to fashion designs to a considerable extent. Here section 15 of the Copyright Act is important. According to it, in the event that a design can be registered under the Designs Act, but has not been registered the copyright lapses to that design when those designs have been applied to an article by an industrial process more than 50 times. This implies that although preliminary sketches or original printed artworks may be entitled to a copyright, but after printing lots on garments, they are technically out of the copyright protection, which is the case with the items that could have been registered through the Designs Act unless they are registered so.

This leaves three options to Indian fashion designers: either to find refuge under the Designs Act (it is mandatory that one must have a registered design and it will last only as long as the depositor lives); or, get the modest protection provided by copyright law to artistic elements until 50 applications are made. Such landmark cases as Rajesh Masrani v. Tahiliani Design Pvt. Ltd. and Microfibres Inc vs. Girdhar & Co & Anr. have assisted in the explanation of the difference between artistic creation and design in Indian jurisprudence.

Although, there are legal means and measures in place that enforce the fashion industry, it is still rather tough to secure intellectual property. The trend coming and going may be so fast that it outstrips the possibility of securing a legal protection, by example, registration of the copyright or design. This lag in-between does not allow these designers to protect their work prior to their reproduction. Also, the concept of reinterpretation made fashion succeed, and it is often difficult to draw a line and cast a shadow on the validity of inspiration as opposed to stealing. Fast fashion stores often reproduce original designs on a large scale, and this activity is particularly hard to control in case of new designers. It goes even further than that as fashion is an international business and getting the IP rights approved in other nations, with their various legal jurisdictions, is complex and expensive. The emergence of e-commerce and the popularity of social media classes open the view of spreading the products and services that are copies of real things quickly and, in many cases, anonymously becoming a severe challenge to the originality and its brand. Most small creators may not be able to afford the legal proceedings to protect their work – simply because they lack resources to do so.

The fashion designers should incorporate an all-encompassing strategy of IP protection to consider these realities. The protection of the original visual works, such as sketches, prints and motifs, can be achieved via copyright, whereas trademarks assist in the creation and protection of the brand identity, i.e., via names, logos, and unique product looks. Larger commercial value designs can be registered under the design law and functional changes in fabrics or in garments might even enjoy patent protection. Periodic monitoring of the internet and online trading spots is important so as to curb malpractice at the initial stages. The designers ought to also use non-disclosure agreements when sharing their work with people they work with together to remain discreet. To deter infringement, specifically, and creativity-respect, in general, the awareness among employees and consumers should be increased regarding the value of IP. Besides, digital content can be securely stored with such technologies as digital watermarking or rights management platforms. Even though the informal ways like timestamping your designs could aid in authoring your designs, the best secure and enforceable way also in the industry is by formal registration.

So can you really copyright a dress? The response is that it is more or less affirmative but it is not always that easy as simply patenting a song or a book. Although in the general rule, dress are not subject to copyright under the useful article doctrine, the aesthetics of the dress that can be detached to the useful purpose of the garment are clearly copyrightable. This entails distinctive print on textiles, graphics, patterns and original sketches.

In addition to copyright, fashion designers need to make other intellectual property mechanisms such as trademarks to build a brand and design patents (or registered designs) to cover the decorative look of their works. The issues of fast fashion, globalization and IP digital replications are examples of the necessity to have a broad-based proactive IP strategy. Learning the specifics of the fashion law and applying the multiple-layered approach to protection, designers have a better chance to preserve their creativity and maintain their brands stronger, able to bring their own unique visions to the world of fashion many years and after. The very thin line that needs to be walked between encouraging innovation and neutralizing inhibiting legal problems is an ongoing debate in both the legal and business communities as they attempt to establish a system where innovation spawns creativity.

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