How can I copyright protect my design?
Copyright is one of the major types of intellectual property and it is designed to protect the expression of an original idea by an author. In the UK The Copyright, Designs and Patents Act 1988 is the main piece of legislation in the field and it lists the type of expression copyright protects, ranging from; graphic designs, literary works, dramatic works, musical and artistic works, to name a few. The Act is an exhaustive definition of what copyright is, meaning if it is not in the Act it cannot be copyrighted.
So if you are a designer the original drawings of your garments or accessories do fall under copyright. In the UK copyright is an unregistered right, meaning it exists at the point of creation. So unlike a trademark you will not have to apply to a government agency to have your copyright approved, you simply mark your design with the copyright logo and year of creation.
Copyright protects your original creation from someone else using it without your permission, if they do you can sue them. Copyright also gives you what is known as exploitation rights, that is licensing your work to a third party for them to market from which you would be entitled to revenue.
But what about the garment itself?
So if the drawings can be protected what about the end product itself? To what extent copyright covers garments and accessories has been a particularly litigious, and to some a controversial area of law, and the courts have appeared to move from one position back to another.
The Act states that a work of artistic craftsmanship can be subject to copyright protection. However it is the meaning of the word “artistic” that has attracted the controversy. The 1976 House of Lords case of Hensher v Restawile found that although the work in question was “pleasing to the eye” it was not a piece of art. The case was heavily criticised and Professor Cornish famously stated that the Lords “took pages of convoluted agony” to reach their conclusions. What this really goes to the heart of is the age old debate of what is art?
Image: Courtesy of University of Oregon Blog
This question was revisited in 2011 by the Supreme Court when it was asked to rule whether the Star Wars stormtrooper helmets constitute copyrighted work. The case grabbed the public attention and the Court ruled that the helmets are not artistic works: they were created for a utilitarian purpose, and not an aesthetic one.
The term artistic in this context remains difficult to define, and by no means is the matter conclusively settled. This is an area of law which is likely to undergo further reform in the future. As a general rule however it currently seems to mean that the work must be aesthetically appealing to the general population, or must have been created as an artistic work. The latter excludes mass produced items of clothing because they are not created as artistic works. Mass produced items may however still fall under the first category though they would of course have to be aesthetically appealing to the general population.
The myth of the “five changes rule”
Unfortunately there is a lot of misunderstanding of intellectual property rights within the fashion industry. One example which is still common today is the “five changes rule”, or in other words if a designer makes five changes to a previous design then there is no infringement. This is myth, because what really matters is whether the work is original, and as discussed above whether it is a work of artistic craftsmanship. In assessing this the Courts will not take a simplistic approach of just examining whether there are a set number of changes, but a far more holistic evaluation of whether original labour and skill has gone into the work and whether it is suitably artistic.
Image: Courtesy of Rahul Mishra
Copyright is not however the only class of intellectual property right that can protect your design against misuse or copy. There is also a type of right known as a design right which can get quite complex and which a later article will address. As a brief summary the drawings of your designs are certainly covered by copyright provided they meet the criteria of originality. For your garments to be protected they would have to be an artistic work of craftsmanship.
Image: Courtesy of Brooke-Jones Attorneys
*Image used for title banner belongs to Fashion Design & Communication graduate Hannah Law.