The Law is NOT Fair to Fashion Designers.
Sometimes justice is served—the guilty and/or liable party is made to pay for the wrongs they’ve done.
And sometimes, the law is just NOT fair, particularly when it comes to protecting the rights of creative content in whatever form it may take. All too often it seems like the law protects the thief—the copyright infringer. Many people believe that copyright infringers are allowed to make money off of someone else’s creative content—with the blessing of the law. Fashion designs fall within that category.
A copyright is a legal form of protection granted to an original work of art or authorship, which has been reduced to a tangible, fixed format. Examples of items that can be protected by copyright are books, articles, website content, photos, blog posts, sculptures, architectural designs, and even ship hulls. Yet, while a ship’s hull can be protected, an original fashion design cannot. To some people that is seen as a flagrant injustice.
Fashion Designer Loses to Copyright Infringer.
In a recent case, the designer and manufacturer of a prom dress sued its competitor for copyright infringement, and the case was dismissed in favor of the alleged copyright infringer.
The court’s decision provides useful information for any young and creative designer, who wants to protect their fashion designs. The court said that the prom dress designer failed to show that “the artistic elements of its dress design are physically and conceptually separable from their utilitarian function and thus are protected by copyright.”
There is legislation in the works, which will hopefully change the law, but we are not there yet.
So what does this mean for you—the fashion designer?
1. Separate design elements from the functionality. When designing fashions that you want to protect by copyright, make sure the artistic and creative elements of your designs are not tied to the functional elements. Add your creative touch to the non-functional or unnecessary parts of the design.
2. Consult with a copyright attorney early, and throughout your design process, to ensure that after you’ve invested hard work and money, no one steals your content without paying you for it.
Francine D. Ward
Attorney-At-Law, Author, Speaker
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