It is no less than a crime to steal someone’s fashion design. Those who are keen on following latest fashion trends are well aware of the raging chaos that ensues when someone does. Even those not too big on fashion know that copying designs from someone else is plain wrong. Designing clothes involves a significant amount of creativity. So, it is a no-brainer that it involves intellectual property of some kind. Most people seem to believe that fashion designs are covered by copyright. But, are they really? Is it possible to copyright fashion designs or not?
Read on to find the answer.
What is a Fashion Design?
A fashion designer is a person who creates clothing, clothing accessories and other fashion items. However, before the actual manufacture of these items takes place, the designers prepare a sketch first. This sketch depicts how the final item will look after it is manufactured.
In common terms, this sketch of the clothing item or accessory is known as a fashion design.
What is Copyright?
Copyright exists in original artistic/dramatic, musical, and literary works. It gives the owner a right to prevent others from making copies of work without permission.
Artistic work includes drawings, among other things. A fashion design, in its most basic form is nothing but a drawing. So, it follows that sketches drawn by fashion designers are artistic works.
Moreover, copyright in artistic work also includes conversion of a 2D work into 3D work. So, even if a sketch is converted into an actual dress, it will be considered an artistic work.
What is the Catch?
So far, it seems that without a doubt, fashion designs are copyright material. But, here comes Section 15 of the Copyright Act. It says that if your work is registered under the Designs Act, it is not eligible for copyright registration.
It also says that if the above design has not been registered under the design act, then it can be registered under the Copyright Act. But, there is a condition. The person applying for copyright registration will have to submit an affidavit stating that the design is not registered under the Designs Act.
The Act also says that even if you obtain copyright registration for a design, it will end as soon as you reproduce it more than 50 times.
Example of reproduction of a fashion design will be to produce clothes using that design. So, copyright protection will cease as soon as your design is made into more than 50 dresses.
What is a Design?
The Indian Design Law says that a design is “features of shape, configuration, pattern, ornament, or combination of lines and colours”.
What this means is that a design is the aesthetic feature of an article. It can be in 2D as well as 3D. So, anything that is visible to and can be judged by the naked eye is a design. This means that the sketch of a jewelry item or an apparel design does qualify as a design.
However, confusion arises because a sketch also qualifies as Artistic work under the Indian Copyright Law. Definition of Artistic work includes drawings, diagrams, and paintings within its purview.
So, when applying for registration, it becomes important to determine where to apply.
Fashion Design: Copyright Material or something else?
It’s time to end the confusion and know for certain exactly where and how you can protect your fashion design.
Copyright v/s Design
The confusion begins because both Copyright and Design Acts protect a fashion design. But, this is where it continues and becomes worse.
Both the copyright act and the design act use the term ‘copyright’ for granting protection to a work. However, both mean different things. It is important to understand the difference between the two.
The below infographic will make things clear and easy to understand.
Can I protect a fashion design under Copyright as well as Designs Act?
No, you cannot. Dual protection of a work is not possible. If you register your work under Designs Act, you cannot get a copyright for it. Likewise, if you reproduce a copyrighted design more than 50 times, you will lose the copyright.
The Final Verdict: Can you Copyright Fashion Designs or Not?
You may or may not copyright fashion designs. It all depends on the final use of the design. This means that if you do not intend to make more than 50 articles of clothing using your design, then you can go ahead and get it copyrighted. Many upscale designers and boutiques produce only a limited number of clothing articles using a particular design.
In such case, copyright in fashion designs will exist. It will exist for the entire lifetime of the designer plus an additional sixty years after the designer dies. So, there is literally a lifetime of protection ahead.
On the other hand, if you intend to reproduce your design more than 50 times, it is better to register it under the Designs Act. Remember that you need to apply for registration before the design comes into public domain.
Once you introduce your design in public, it becomes ineligible for design registration.
It is safe to say that it is possible to copyright fashion designs. But, this will be true as long as they are not being mass produced. For mass produced designs, protection under the designs act is the right option.
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