Fashion is art. Flipping though five pages of Vogue, or watching two-minutes of a fashion show, makes that statement unquestionable. High fashion garments are indisputably the product of creators dedicated to wearable art. As a creative industry, fashion needs copyright law.
Copyright law is intended to encourage creativity by protecting an artist’s right to exploit their work. It should follow that fashion designers’ pieces are protected by copyright law. But copyright law has yet to clearly protect clothing. Designers works’ are left vulnerable to unauthorized reproductions. The news is full of stories of fashion corporations and independent designers in dispute over ownership of designs, for example, Zara and RAINS coats or Bassen’s pins (the coats , the pins).
Why doesn’t copyright clearly protect fashion design?
The law must make distinctions. Somewhere along the line the law decided fashion, or simply clothing, was functional and not creative. Since then, the law has claimed that because clothing serves the function of covering our bodies, it is not creative, and not protected by copyright law. It doesn’t matter how artistic a piece of clothing is, if it functions to dress us, it cannot be subject to copyright law.
So how can Canadian designers compete?
One path of recourse may be the law of derivative copyright. The law of derivative copyright gives the owner of a copyrighted work the exclusive right to make subsequent copies of that work, regardless of the medium. But how does that help fashion if we already established that clothing does not enjoy copyright protection?
Patterns. Designs. Drawings.
Designers have a copyright claim to their drawings; two dimensional images of clothing are clearly recognized under copyright law. It could be argued that a knock-off dress isn’t a copy of the original dress, but of the original drawing, and is therefore in violation of the design’s copyright.
This argument worked in cases of turning 2D cartoons into unauthorized 3D dolls, so it may hold up in dresses. But regardless of this potential argument, it is clear that if Canada wants to encourage innovation in fashion there must be serious reform to copyright law. Fashion needs copyright law, or some equivalent. The law must clearly allow designers to retain ownership of their designs to foster a creative environment in Canada.
Follow us on LinkedIn for regular updates from the world of Intellectual Property and Business Law.