CAN WE COPYRIGHT CLOTHING DESIGNS?

Introduction 

Fashion is the medium for art to invade our wardrobe. It is an art form that thrives on new creations and ideas from designers. Intellectual property law grants authors exclusive and proprietary rights for economic and moral benefits. In addition, these laws provide remedies for fashion forgery and counterfeiting that are becoming a serious threat to designers.
 

Still, let's find out how existing legislation can penetrate the fashion industry to protect the intellectual property of fashion design.

Intellectual property (IP) law is based on incentive theory. This gives the creator exclusive rights, can benefit from the work, and encourages the creator to create more work. The fashion industry has been described by many scholars as the "negative realm" of intellectual property, where creation and innovation thrive without significant protection from intellectual property law.

"Many areas of creation work without intellectual property protection. Small groups living in the negative space of IP are empowered by this absence.

The Battle of Fashion Designers and Their Intellectual Property Rights

It's common to hear from famous designers in the fashion industry that they buy their first item
at a much lower price. Gaffer Market in Delhi, Brigade Road in Bangalore, Linking Road in Mumbai and Vardhman Market in Colkata are the first and second copies from the highest quality designers at a fraction of the price compared to real design items.

A place you can find. Plagiarism also exists among designers in this industry, often with one major design house copying the design of another major design house. In 2017, Rohit Bal became the first designer to copyright his entire collection, followed by many prominent designers.

This scenario raises many questions about the position of Indian intellectual property law in the context of fashion design. Designers who create designs for commercial use are at a loss when copying and distributing designs.

Why don't designers protect their designs with intellectual property law? Does Indian Intellectual Property Law Protect the Fashion Industry? If so, how much? And why don't designers find incentives to protect their designs? This article covers all of these

Understanding the Law

Fashion Design is copyrighted in India under two laws: the 1957 Copyright Act as a "creative
work" and the 2000 Design Act as a design. There are two main aspects to the design of clothing that may be protected by these laws.

First, the picture and color combination of clothing can be protected as a "work of art" under copyright law. Secondly, the shape of the garment due to its unique fabric and couture can be protected under the design method. In India, the Copyright Act of 1957 does not require the registration of works of art.

Another important aspect of the design is the logo. Indian trademark law allows for the protection of logos that are part of designer brands and accessories.

Section 15 A detailed understanding of the situation from the perspective of UrhG is even more confusing.

This is a special design copyright clause and, if registered under the Design Act, indicates that there is no copyright under this Act. The law makes it clear that design registration and copyright of goods cannot coexist. This limits the design period to 10 years and can extend it by another 5 years. Section 15 of Copyright Law (2). 1957 limits copyright restrictions based on design production. When the production of fashion items exceeds 50, the copyright disappears. If you want to copy more than 50 units of a design, you need to register the design based on the Design Patent Law to protect the copyright.

It is not disputed that the moral rights of the copyright owner are not affected. Article 22 of the Copyright Act of 1957 grants full copyright / ownership of the original work of art for a lifetime plus 60 years. However, another aspect is about the improvisation of the original work. The fashion industry is thriving with improvisation of existing clothing styles.
 

Many celebrities in the fashion industry are Sections 11 and 22 are very important for the analysis of the 2000 design law related to fashion design.

Copyright is derived from Article 11 of the Design Act 2000, where the design is protected / copyrighted for 10 years at the time of registration and extended for an additional 5 years if requested before the copyright term expires.

Article 22 prohibits copyright infringement of a registered design by illegally using the registered design or fraudulent or obvious imitation without the consent of the registered owner.

 In addition, this section also prohibits the import of pirated copies for sale. In addition, the third schedule of the 2001 Design Regulations mentions specific classes of articles in which various designs are registered.
 

According to these rules, "clothing and ornaments" are classified in class 02. A very big limitation of the Design Law is that the designs proposed for registration must be unique and novel.

The boundaries of IP protection in the fashion industry are very vague and difficult to see. There is overlap between the 1957 Copyright Act and the 2000 Design Act in the definition and protection of intellectual property in fashion design.
For obvious reasons in reality, it is difficult for designers to apply for a design patent for their clothing.

First, the design requiring registration must be distinguishable from existing prior art. Second, the fashion life cycle is very short, and fashion styles change until a design patent is obtained. This is a huge motivation for designers. This makes the fashion industry vulnerable to copyright infringement and plagiarism.

Fashion designers invest their time and money in creating designs, and the fruits of their labor fall into the hands of copycat designers. The designer's pain is exacerbated when he decides to file an infringement proceeding against a counterfeit designer due to the high legal costs, energy, and time he has to invest.

By the time the court closed the proceedings, fashion styles would have changed and would have brought no benefit to designers. In addition, the monetary loss determined by the court does not exceed 50,000 rupees.

On the contrary, Cal Laustiara and Christopher Sprigman said that copycat designers have entered the fashion industry by driving the fashion cycle by creating trends that inspire fashion houses to create the next big fashion trend. Claimed to bring benefits. They called this the "piracy paradox."

The fashion industry is very dynamic. Everyone knows that fashion trends disappear when everyone starts wearing similar styles of clothing. Imitation / imitation designers help spread the design quickly by flooding each market with fakes.

The sooner the trend ends, the more designers can launch new trends, and eventually people will demand new styles of clothing, which will bring economic benefits to the designer.

written by:

Manjushree Mitra