Fashion and copyright : a thin line between inspired and copied

The Indian fashion business is taking extensive actions towards improving fashion. On one side, the designers are creating unusual and charming designs. On the other hand, it is getting destroyed by duplicating the designs. Development in technology and modifications in the field of IPR is taking the fashion industry under its ambit to protect the interest of the designers.

How is the fashion industry relevant to copyright protection?

In India, the fashion industry has bounced in evolution, as the designers in this new era have exceptional ideas and are creating unique designs. There have been numerous criticisms from the fashion designers regarding their ideas being imitated, and piracy is a usual event. 
Over the prior several years, there has been a continuous debate for the security in the fashion industry for copyright protection. As piracy became an almost everyday matter, the fashion designers were required to move ahead to use copyright protection to ensure that their designs remained exclusive and no one could copy or trade the designs without the corresponding authorization.

How is the Copyright Act 1957 acting in the fashion industry?

The subject matter of copyright protection is an artistic work as per the Copyright Protection Act. Continuous development in the industry for fashion is highlighted where most of the piracy is made. It is also relevant that how fast the fashion retailers are making inferior quality and clothes at less cost affecting the sale of the original branded clothes, accessories, footwear, and jewellery. 

In India, the artists seeking protection for their work are granted for a lifetime and additional 60 years after their death.
Intellectual property rights represent a critical role in getting extended in the fashion industry. The fashion industry operates fashion week where models wear designer garments created by the designers, and the ideas are revealed through the show.

How is IPR applicable to the fashion industry?

The Intellectual Protection Rights Administration in India preserves the fashion design under three legislations:

  • The Designs Act, 2000, 
  • The Indian Copyright Act, 1957, 
  • The Trademarks Act, 1999, and GI Act, 1999. 

From the viewpoint of the Fashion Industry, the Acts do not shield the complete outfit as a whole; rather, it protects the individual features like pattern, shape, colour, etc., of the outfit. It follows two aspects:

1) It cannot give protection to designs that are not registered:
The Design Act provides protection only to the registered designs. The designs that are not registered would not be eligible to enjoy the benefit of this Act. They cannot initiate a lawsuit to recover losses for not-permitted copying of their designs and an injunction against the repetition thereof.

2) Protection under the Copyright Act:
A fashion design is eligible to be registered as “design” under the Designs Act, 2000, but in case, not registered, it may get protection under the Copyright Act, 1957. Copyright in fashion design, in this connection, will be up to (50th) reproduction by a technical process of the article to which design has been applied.

What are the conditions that the Copyright Act imposes on the fashion industry?

Copyright is the area of Intellectual Property Rights where the Copyright Act protects the unique artwork. The first and most important element of the work is that it must be “original” and be in a ‘material form.’ 

Nobody can bar artwork from being inspiring. Therefore, when a new kind of work is introduced in the market, it can be copyright protected to the extent that no other designer can copy it in such a way to disguise the original. However, suppose that original work inspires another designer to create something similar, more or less, which can be easily differentiated from the original work. In that case, it is not limited by the Copyright Act.

Fashion design comes under the section of artistic works. Therefore, the artistic work is guarded under Copyright protection. It must have a level of appreciative appeal to it and should result from the creator’s talent and knowledge.

In brief, the copyright product must be unique, artistic, autonomously made, made in a physical medium.

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