INTRODUCTION TO FASHION MODELLING

Fashion is more than merely a piece of clothing and attire. Intellectual Property has a ability to secure creations such as inventions, literary and artistic works, components of fashion designs, symbols and images used in trade and commerce, etc making it a significant law in the fashion industry. The Indian Intellectual Property laws, namely The Copyright Act,1957 and The Designs Act, 2000 provides protection to the designer clothing. Designer Rohit Bal became the first in India to get copyright as well as patent over his entire collection in 2017 which was followed by Anju Modi and Anita Dongre.

FASHION LAW AND THE INDIAN COPYRIGHT ACT

The Indian Copyright Act, 1957 protects Fashion design under the definition of Artistic works S.2(c) which is defined as a painting, a sculpture, a drawing or a photograph, irrespective of such work possessing artistic quality, and any other work of artistic craftsmanship. Several components of fashion such as drawings, photographs of models, jewellery, editorial content, fabric pattern and design software are protectable under the Copyright Law. The Delhi High Court recognized the copyright of the plaintiff in the ‘Toile Monogram’ pattern as well as in the ‘Murakami monograms’ in Louis Vuitton Malletier v. Atul Jaggi and Another.  The Design Act under Section 15 provides an exclusive provision regarding copyright in designs registered or capable of being registered under the Designs Act, 2000 . It states that Copyright in any design shall not subsist if the design is already registered under the Designs Act, 2000.  In Rajesh Masrani Vs. Tahiliani Design Pvt. Ltd. Delhi High Court observed that since the work was ‘artistic’ in nature therefore it was not capable of being covered under the Design Act, 2000.

The question often arises as to whether one should seek copyright protection of their original work or get the design registered to ensure its full scale commercial exploitation. The Copyright Act is beneficial over the Design Act as it provides a longer duration of protection than the latter and also does not require compulsory registration, unlike that under the Designs Act.

This dilemma came to the courts in Ritika Private Limited v. Biba Apparels Private Limited. In this case, the plaintiff, a boutique apparel designer brand brought a suit against Biba, a leading name in ethnic wear, for an injunction to prevent reproducing, printing, publishing, selling or offering the prints or garments to which the plaintiff claimed to be the first owner. The issue raised was that once the copyrighted works of the plaintiff are applied for the making of any dress, and production of that dress exceeds 50 in number, whether the plaintiff loses ownership of her copyright works ?  It was observed that copyright protects the original expression of the “artistic work” and offers only limited protection to the commercial exploitation of the same. The Designs Act on the other hand is the most important tool to protect industrial application of the design, where the design need not to be always original.

Relying on the bar under Section 15(2) of the Copyright Act, 1957, the dispute was decided in favour of the defendants and the suit was dismissed.  It was also held that if the facts had been different from the ‘application of the designs’ to ‘direct lifting of the design’ i.e copy pasting the copyright work from its original form, the answer would have also differed.

WHAT IS COPYRIGHT LAW? WHAT ARE THE ADVANTAGES OF COPYRIGHT REGISTRATION IN INDIA? TO KNOW MORE, VISIT -  

RIGHTS OF PHOTOGRAPHERS IN THE FASHION INDUSTRY

Indian Copyright Act is in concurrence with several international treaties. These include Berne Convention1886, Universal Copyright Convention 1951 and Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement of 1995. According to the Indian Copyright Act, generally, the creator is regarded as the first owner of the copyright on a work created by him/ her. However, when it comes to photographs, the photographer is considered to be the first owner of the photograph unless there is an agreement to the contrary.

In India, photographs are protected under the definition of artistic work under Section 2 (c) of the Copyright Act 1957.  Since the quality of photos is immaterial, even a bad photograph can also be protected. The essential feature for the protection of a photograph under this section is that it must be an original work. According to section 25 of the Indian Copyright Act, the photographs can receive protection for 60 years from the date of publication. The date here is the date on which one has taken the photo; there’s no need to get it actually published in any book or magazine. The rights of the Photographer comprises the right to reproduce the photographs, to alter them, publish them, etc. The Act effectively defends the Photographer’s Copyrights in India. It ensures protection for not only the traditional paper photographs but also the online photographs, though not expressly mentioned.

WHAT IS MODEL RELEASE?

Model Release is written permission from a model to the photographer regarding their permission to sell photographs in which they feature. This invalidates the need for the photographer to have to take her permission each time he/she wishes to sell the image. 

Although taking a photograph never requires a model release yet the publishing of that photo including someone's likeness, may require a model release. Usually, a model release is only essential if the way the photo is published makes it appear that the model in the photo endorses the product, service, or organization, therefore a model release is a must if the use is for advertising. A model release is needless for publishing the photo as news, or for artistic or editorial expression.

CONCLUSION

One should always have a contract with a Model in case hired to take pictures of them. This simply sets expectations for both the photographer and the Model. By simply having a contract with the model that includes a model release, the photographer has their bases covered. If not done, it may lead to copyright infringement in case of advertisements and also infringe other rights.

BY- SHRIJA VERMA