Copyright Laws inability to fully protect Fashion Designs

Introduction

Through the means of fashion, art may enter our closets. It is an art form that depends on the fresh inventions and concepts of designers. The rules governing intellectual property provide the inventor ownership and exclusivity in exchange for monetary and ethical rewards. 

The basis of intellectual property (IP) law is the incentive theory, which grants exclusivity to the author, allows them to benefit from their work, and motivates them to produce more. Numerous academics have referred to the fashion sector as IP's "negative space" areas, where invention and innovation flourish without much protection from IP law. "Many creative fields may operate without intellectual property protection. 

Fashion designers and their IP tussle

It is common to hear about getting a well-known fashion designer's original designs for considerably lower prices. First and second copies by prominent designers may be found in the Gaffar Market in Delhi, Brigade Road in Bangalore, Linking Road in Mumbai, and Vardhman Market in Kolkata for a pittance compared to the cost of the original design item. In this profession, there is also inter-designer plagiarism, when one major design firm frequently steals the ideas of another major design firm. The first designer to obtain copyright for his complete collection was Rohit Bal in 2017, and several more well-known designers soon after.

Under two laws in India—the Copyright Act of 1957 as "creative works" and the Design Act of 2000 as "designs"—fashion designs may be protected from copying. There are primarily two components of clothing designs that these regulations can protect. First, the designs and colour combinations on the clothing may be considered "artwork" for purposes of the Copyright Act. Second, under the Design Act, the shape of the garment that is indicative of its specific fabric and couture may be protected. The Copyright Act, 1957 does not require the registration of artwork in India. The logo is a crucial component of the design. The Trademark Act in India gives marks that are used on designer apparel and accessories legal protection.

The limits of intellectual property protection in the fashion sector are hazy and hard to understand. In creating and defending the intellectual property of fashion designs, the Copyright Act of 1957 and the Design Act of 2000 coincide.

International outlook

Drawings and graphic works on an object, as well as 2-D goods like textiles, are protected under the UK Copyrights Designs and Patent Act 1988 for the duration of the owner's life and for a further 70 years. Similar to this, cloth prints are protected in the US for a period that includes the designer's lifetime and an additional 70 years. IPR that is protected in the US includes "decorative designs of a functional product," such as ornamental designs on jewellery, watches, and cell phones. Garments are infrequently given design patents, which have a 14-year protection period. Fashion designs are protected by the European Union for three years, after which time artists may seek for an additional 25-year extension.

A clothing design is made up of two components: a creative design component and a usability component. The original design components must be distinct from the article's usefulness in order for it to be protected by copyright. Masquerade Novelty is one example, as stated in (Scruggs 2007, 124). The "nose masks" that resembled the snout of a pig, elephant, or parrot were at issue in Masquerade Novelty. 

IP predicament for the fashion industry 

It's a catch-22 issue for designers who want to patent their clothing designs for reasons that become clear when you take into account the realities on the ground. First, the design patent that is being registered must be able to be distinguished from the previous art. Second, because the fashion life cycle is so short, new fashion trends have already emerged by the time a design patent is acquired. It significantly lowers the designers' motivation. Because of this, plagiarism and piracy are a problem in the fashion business. Fashion designers devote time and resources to creating designs, yet the rewards of their labour are captured by imitators.

The designer's suffering is made worse if they choose to sue copycat designers for infringement because doing so would be expensive in terms of money, effort, and time. The fashion trend would have changed by the time the matter was resolved in court, making the designer irrelevant. Furthermore, the court's award of monetary damages is limited to no more than 50,000 rupees.

Conclusion

Given that the majority of fashion clothes is regarded as functional, we may infer with confidence that the IP rules do not protect the design as a whole. Instead, rare aspects of the garment design that may be conceptually and physically separated from the function of the garment are protected by IP regulations. Fabric, patterns, drawings, images, logos, etc. are a few examples. These different components make up a fashion design's intellectual property, not the entire piece of clothing.

Due to the designer's inability to receive credit for the work she does without being able to profit from it, IP litigation has increased. Given that they create in large numbers, design brands like H&M, Zara, Levis, Uniqlo, and others should take the initiative to register their designs if they are novel or original. Under copyright rules, designers who generate less than 50 need also register their creations.