Copyright and design rights in the fashion industry

16 October 2019
Posted by Jennifer Tutty & Megan O’Halloran

There is a lot of confusion and frustration in the fashion industry about IP and how the law protects fashion designs.  And rightly so!  It’s a complicated area of law, one that is commonly misunderstood and that unfortunately does little to effectively protect fashion designers and their work. So, we thought we would break it down, in a hope that this blog will bring some clarity to how IP law applies to fashion designs.

What does copyright protect?

Copyright is a type of property that a person can own, just like a house, a car or shares in a company. Like other types of property, you need permission to use someone’s copyright, and it can also be bought, sold or licensed to someone else. In Australia, copyright is regulated by The Copyright Act 1968 (Cth) (the Copyright Act) and the common law i.e. decisions of the courts in relation to copyright.

Various types of ‘works’ are capable of copyright protection including literary works, dramatic works, musical works and artistic works. Artistic works include, for example, photographs, paintings, jewellery, drawings, sculptures and costumes. For a work to be protected by copyright, the work must be ‘original’ and expressed in a ‘material form’.  In assessing whether the subject matter is ‘original’, the author must have displayed sufficient independent human skill and effort to create the subject matter. This isn’t a hard test to prove and has little do with creativity. Subject matter will generally be considered original if it is not a copy of something else.

In Australia, there is no system of copyright registration unlike, for example, the US. When a work is recorded in material form and it is sufficiently original, you will automatically acquire copyright ownership, without the need to register the work.

Copyright protection for designs

Copyright law can protect fashion designs when they fall under the category of ‘artistic works’. Artistic works can include paintings, sculptures, drawings, sketches and patterns for clothes, costumes and accessories. Patterns or photographic images that are printed onto fabrics may also be protected by copyright as artistic works.

Artistic works also cover works of ‘artistic craftsmanship’. One off items of clothing that are individually created are likely to be works of artistic craftsmanship, and therefore protected by copyright. Individually made pieces of jewellery, hats, handbags and shoes may also be works of artistic craftsmanship. For artistic works to be protected by copyright as a piece of artistic craftsmanship, they must have a level of aesthetic appeal and be the product of the creator’s skill and knowledge. This does not mean that the item must be handmade; some products produced by machines have qualified as products of artistic craftsmanship.

When does a design lose copyright protection?

If the design is an artistic work, once the design has been “industrially applied” i.e. commercially manufactured, it loses copyright protection. Whether there has been industrial application of the design is a question of fact and depends on the circumstances. However, as soon as a design is applied to more than 50 articles, or to one or more articles manufactured in lengths or pieces, it is regarded as “industrially applied” by law and the item loses copyright protection.

This does not however affect works of artistic craftsmanship. Custom-made and limited-edition designs may retain copyright where they would otherwise be considered industrially applied, which can often occur in the millinery industry (e.g. fascinators). If a work of artistic craftsmanship is copied, the creator may bring a claim for copyright infringement against the copier.

Registration of designs

Design law can also protect fashion designs. As opposed to copyright, which doesn’t need to be registered, designs must be registered in order to gain protection. Intellectual Property Australia (IP Australia) is the government body that handles design applications and registrations.

Design protection is only available if the design is new and distinctive. If any design could be registered, the market would be monopolised. So, in order to qualify for registration, the design must be considered ‘new and distinctive’. ‘New’ means the design has not been publicly used in Australia nor has it been published in a document in Australia or overseas.  A design would not be new, if it has been posted on a social media site or the designer’s website for example.  ‘Distinctive’ means that the design is not substantially similar in overall impression to other designs that are already in the marketplace/public domain.

Once registered, the design will be protected for a maximum of 10 years. A registered design protects the overall visual appearance of the product, including the shapes, configurations, patterns and ornamentation. It prevents exact replicas of the product, but also protects against products embodying that design or designs that are substantially similar to the overall visual of the registered design.

An alternative to design registration is publication and is less costly than registration.  If you publish a design, you do not have any rights in that design but it can be used for strategic purposes, as other designers will be prevented from registering the same or similar design.

The practicality of registering designs

Registering your design with IP Australia can be expensive. Add on top of this, legal fees, if a designer needs assistance drafting the application plus technical drawings, the price of registering your design can really add up. Due to the short life span of fashion designs in the ever-changing fashion industry, many designers choose not to register their designs.

It is difficult to know what designs will be ‘signature designs’ before they go on sale. However, at Studio Legal we recommend to our clients that if they have been developing a new product, and they believe it will be a signature design that will be sold over and over again, throughout many ranges and years, that they should strongly consider design registration.  As copyright law provides little protection for fashion designers, and more and more copycat stories unfold, fashion designers and labels should understand the benefits of design registration.

If you would like assistance about how to protect your fashion designs, or advice on what to do if someone has copied your design, please contact us on 03 9521 2128, or email us at hello@studiolegal.com.au.

DISCLAIMER

The information in this article is of a general nature. It does not constitute formal legal advice, and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.