Earlier this month, designers took part in an interactive copyright challenge at the Textile Forum and were split as to whether one fabric design infringed the copyright in another. The challenge highlighted uncertainties and myths that often surround intellectual property rights in fashion designs, by presenting visitors with sketches of two patterned dresses based on designs which were previously the subject of a copyright infringement case that was ultimately decided by the Supreme Court. The ruling was that the later design infringed the copyright in the earlier design.
“The interactive copyright challenge was intended to be a light-hearted way of raising awareness of IP issues among fashion fabric designers”, says Hilary Atherton, intellectual property lawyer in Bird & Bird‘s Fashion & Luxury Goods group. “One of the purposes of the challenge was to debunk myths such as the ‘Five Changes Rule’. However, there are other aspects of copyright law which designers may not be aware of, for example, that even subconscious derivation (where the infringer does not consciously realise he or she is copying an earlier design) can result in copyright infringement.”
“In the particular case on which the challenge was based, the original design was protected by copyright because it was ‘original’. That’s not to say that inspiration can’t be drawn from elsewhere when developing a design, but it mustn’t be a copy of another copyright work and must involve some ‘labour and skill’ in order to be protected by copyright”, says Atherton. “It was deemed that the infringer had taken ‘a substantial part’ of the skill and labour expended by the designer of the earlier design – one of the criteria for establishing whether copyright is infringed.”
“Designers should be aware of the various options available for protecting their designs (including registered and unregistered design rights). It is essential that they keep accurate and contemporaneous records of how, when and by whom the design was created,” advises Atherton.