Although Fashion Week A/W 2017 is over, there is no denying that the Fashion Week season in general always brings about some of the most exclusive events in the fashion industry, showcasing the creativity of the fashion designers and their expression and vision of the new trends to come. With the opportunity to see some of the latest designs, one must not forget comes some of the issues that many fashion brands and designers suffer when their designs are copied and produced for the public before they can start their own production process. This issue comes with copyright infringement.
But before we delve into what this entails, let’s start by understanding what copyright is.
Copyright can be found in literary, dramatic, musical and artistic works from the moment they are created and recorded, either in writing or in some other material form. This includes published editions of works, sound recordings (including CDs), films (including videos and DVDs) and broadcasts. The work of fashion designers would fall under “artistic works” as it usually involves graphic works, photographs and other works of artistic craftsmanship.
While there are some countries where the copyright registration can be offered or is even essential to ensure protection, under UK law, copyright is protected the moment the work is created. Therefore, registration is not necessary. However, the work should comply the following requirements:
- It is expressed in a material form as copyright law does not protect ideas or creative concepts.
- It is original as the designer should have used their own skill and work to create the work.
- It falls under one of the protected categories. The work of fashion designers would fall under “artistic works” as it usually involves graphic works, photographs and other works of artistic craftsmanship.
- It has a connection with the UK, such as the designer being a UK citizen or the company being registered in the UK. However, if this is not the case, there are other means of protection of copyright by way of the international conventions and EU law.
Copyright protection lasts for 70 years after the death of the author. However, if it is produced by an industrial process, the protection can be reduced to 25 years from the end of the calendar year the work was first put into the market.
Copyright infringement usually arises when there is a deliberate copying of someone else’s work. Some infringement can be unintentional (for example, by way of inspiration of other works), other forms can be more straightforward, such as exact imitation of a design and producing it for the public without consent.
Fashion Week in particular can be a sensitive period for copyright infringement as the work of the designer is shown publicly and hence make the work more susceptible to copying from third parties.
Some of the recent cases relating to this subject:
Last year, Jeremy Scott and the brand Moschino, which Scott is the creative director of, were sued by a graffiti designer artist over the use of one of his work to create the popular Met Gala gown worn by Katy Perry. The artist, Joseph Tierney (“Rime”) claimed that his work “Vandal Eyes” was used a print pattern for the design.
This matter was finally settled outside court after losing a motion to dismiss and motion for summary judgment.
Forever 21 v Brandy Melville.
Although Forever 21 is known to have been sued by other brands in the past, in this occasion, the brand file a lawsuit in August 2016 against another retailer, Brandy Melville, an Italian clothing company which first opened its store in the US in 2009.
Forever 21 alleged that the brand had copied a dress whose design was a copy of a Forever 21’s copyrighted work and demanded the company to stop selling the brand, turn over its profits made from the dress and pay for damages.
Naeem Khan v J Crew
In 2015, the fashion designer discovered that J. Crew Soho displayed in its store a dress with a very similar print to a summer dress from his Spring 2014 line.
The designer himself addressed this matter to the public on his Facebook account, posting a picture of the two images side by side for comparison and expressing his own surprise. Although the designer has not seemed to press this further, it definitely caught the attention of the media and the public as to whether this can be considered a case of copying or just inspiration.
H&M v Forever 21
As mentioned above, Forever 21 has been subject to many lawsuits from other brands for copyright infringement in the past. However, even though the fashion brand has started to seek protection for its own work, it seems that has been brought onto the spotlight once more.
H&M, which is another high-end brand known for having its own share of disputes over copyright, sued Forever 21 for copyright infringement in 2015. The copyrighted work itself consisted of a bag with a palm tree design with the text "Beach Please".
H&M alleged the copycat bag from Forever 21 harmed its brand and reputation and requested the brand to stop the marketing and manufacturing of the bag as well as to hand over the profit obtained from sales.
Lastly, under UK copyright law, there are some means to protect the copyrighted work in case of infringement. This includes:
- An interim injunction which is a temporary order to stop the infringer from committing the infringing activity until the matter is resolved at a full trial
- A permanent injunction, a legal order to permanently stop the infringer from continuing to commit the infringing activity
- An order for delivery up or destruction of the infringing goods
- An award for payment of damages or an account of the net profit made from the infringing goods
- A declaration that copyright subsists in a specific work and has been infringed.
There are also criminal penalties for copyright infringement. For example, deliberate infringement of copyright on a commercial scale may be a criminal offence.