Copyrightability Of Designer Clothes And Costumes

Introduction

An artist’s ideas, be it for a renowned painting, sculpture, novel, technological design, jewelryor fashion are his own. They must not be used by anyone other than the artist himself. However, many a times, we witness these designs being copied or recreated. Copying designs as well as creating replicas of any sort which closely resemble the general composition or the original blueprint infringes the right of the creator. To counter this issue laws are placed so that the original ideas can be protected. If any person imitates the ideas of any other creator, he would said to be infringing the original artist’s design and the copyright thereof.

A copyright protection is the ability of a designer to protect his original designs through the copyright laws.

What Is Copyright?

Section 14 of the Copyright Act, 1957 defines copyright as an exclusive right subject to provisions of the act, to do or authorize the doing of any acts in respect of a work or any substantial part thereof. A copyright gives exclusive right to the owner so that he can safeguard his original creation. Furthermore, protect it from any kind of misuse. It prevents the unauthorized use of the design, logos, trademarks etc. It is a form of IPR that is used to guard the hard work and efforts of the artist. It is an intangible right to reproduce and distribute his original piece.

Copyrights can be awarded for usage of literary works, dramatic works, cinematographic films, musical works and even for the designs of clothes and jewelry. Copyrighted products can neither be reproduced, nor publicly displayed or distributed without the consent of the owner. In the absence of permission, the owner can file a suit against unauthorized use and infringement of his work.

History Of Fashion Copyright

During the 1800s the root idea for the intellectual property rights was entertained in the Paris Convention to muster up joint action among international jurisdiction. The Berne Convention solidified it. The very first fashion trademark was registered in 1858 by the Persian couture house. In the USA, the copyright act of 1976 granted safeguards to the fashion designers.

In India the protection of a designer’s original creation is protected under both, copyright and designs legislation.Some relevant laws protecting the clothing industry are the:

• Copyright Act of 1957– The Act protects the original works of the artists from the time the said original work is put in fixed form. Unlike other forms of IPR, copyrights subsist in works from the moment they are expressed in fixed form irrespective pf whether or not you have applied for a registration.
• The Design Act 2000-The Designs Act of 2000 was enacted with the intention of safeguarding non-functional parts of a product that have aesthetic appeal, such as the arrangement of shapes, patterns, decorations, or lines or colours applied to any two-, three-, or both-dimensional form.
• The Trademarks Act 1999-The Act intends on protecting the name of the brand by registering the trade name of the brand, hence eliminating the possibility of any other person using it without facing consequences.
• The Geographical Indication Act of Goods Act 1999– Certain textile and forms of art originate from specific regions, the GI Act aims to protect the location specific art form from unauthorized use and branding.

Articles Protected Under The Copyright Laws

Normally, fashion garments are placed under the bracket of ‘artistic works’ under the Copyright Act owing to the fact that they are the works of artistic creations. Any specific design or original artwork that is incorporated into a garment is capable of being protected under the copyright laws.

Since the fashion industry is very versatile, there are bound to be the presence of counterfeits especially for famous clothing lines for both Indian and international brands. Visibly, the most imitated brands around the world are Gucci, Louis Vuitton, Chanel, Michael Kors, Coach, Nike, Rolex etc.

Copyright Infringment In The Clothing Industry

The various methods through which copyright infringement takes places in the fashion line are as follows:

• COUNTERFEITING– In simple words, counterfeiting means “to imitate or feign especially with the intent to cheat or to make a copied replica of”. In the fashion industry, counterfeiting is simply creating the replica of a popular design and selling it at a lower price. Recently, the movie “House of Gucci[i]” exposed the already existing trend of counterfeiting in the fashion industry.
• UNAUTHORISED REPRODUCTION OR UNCREDITED USE –Unauthorized production is a way of making a facsimile of the textiles prints, designs etc. without the consent of the original owner.Uncredited use on the other hand refers to using copyrighted protected work without the permission of the owner and without crediting the owner for their work.Such instances deprive the owner of copyrights of their right to get recognition for their work.
• KNOCK OFF- It refers to the unauthorize use, production, imitation or the creating of replica of the logos and trademarks without the proper permission or without the acquiring of the license from the owner of the trademark.

Process Of Obtaining Copyrightfor Designer Clothing And Costumes

To determine whether your clothing is eligible for copyright protection, you must prove its originality without doubt. It should have been produced through your own creative thinking process over a significant period of time. The costume should be a result of one’s own inspiration. It must be unique in the way that it does not resemble anyone else’s already existing product[ii].

Next, the clothing has to be registered with a proper authority. In India, one must register their work with the Registrar of Copyrights[iii]. In the USA, one has to fill a copyright form provided on the US Copyright Office website. The application can be sent through the mail or it can be done online. The applicant must clarify the specification of his costume which he wishes to copyright, since the actual garment cannot be copyrighted. The submission of hard copies of the logos or decorations is essential. There is a standard charge which can be paid through preferable paying options.

In India, the Registrar of Copyrights divides the works to be registered into the following six categories:

Part A. Literary Works Other than Computer Programs.

Part B. Musical Works.

Part C. Artistic Works.

Part D. Cinematography Films.

Part E. Sound Recording.

Part F. Computer Programs, tables and Compilations.

Penalty For Infringement Of Copyrights Of Clothing Designs

• Under the Trademarks Act 1999, Sections 103 to 109 provide for different punishments, monetary and otherwise for the unauthorized use of one’s trademark.
• Further, under the Copyright Act 1957, Chapter XIII specifies the various offences under the Act and the penalties and punishments attached to each of the said offences.
• The Design Act 2000 specifies the offences and their penalty under Section 22(2) of the Act.

Case Studies

Rajesh Masrani v. Tahiliani Designs Pvt Ltd[iv]

In this case an injunction order put a stop to Rajesh Masrani who was producing and selling a fabric similar to that used by Tahiliani designs, they put forth the argument that the designs should be registered under Section 15(2) of the Copyright Act 1957. The High Court ruled that the design is protected according to the copyright act since the original work existed in fixed form andwas produced in a quantity of less than fifty hence not covered by the Design Act.Tahiliani designs created only twenty limited edition pieces and they were granted protection against imitation and selling or advertising the same design.

Masquerade Novelty[v]

The case was regarding nose masks which were like the noses of the animals, they were considered to be utilitarian articles and hence, they could not be protected under the Copyright Act initially. This decision was overruled, reason being, that the masks were found to have specific artistic expressions which made them copyrightable.

Conclusion

Copyright infringement of design clothes is one of the most common practices of many countries around the globe. Not only does this dilute the creativity of the official designers, but also demotivates them since they have invested their time, energy and efforts. The government of every country must ensure that the stringent laws are made so that the welfare of these artists is safeguarded.

Author: Mudit Sood, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing

[i]https://www.lexology.com

[ii] https://vakilsearch.com

[iii]https://www.onlinelegalindia.com

[iv] 2008 PTC (38) 251 (Del.)

[v] 912 F.2d 663