First, a help for understanding the main terms during the interpretation of copyright in the “fashion” business in accordance with Art. 1 of the Law of Ukraine “On Copyright and Related Rights” (hereinafter – the Law):
the author is an individual who created the work with his creative work.
exclusive right is the property right of a person who has copyright and/or related rights to use these objects of copyright and/or related rights only to them and to issue permission or prohibition of their use to other persons only by that person within the period established by this Law.
reproduction is a production of one or more copies of a work, videogram, phonogram in any material form, as well as their recording for temporary or permanent storage in electronic (including digital), optical or other form that a computer can read.
author’s name – a set of words or signs identifying the author: the author’s surname and name; the author’s surname, first name and patronymic; initials of the author; the author’s pseudonym; the sign adopted by the author (a set of signs), etc.
distribution of objects of copyright and/or related rights – any action by which objects of copyright and/or related rights are directly or indirectly offered to the public, including bringing these objects to the attention of the public in such a way that its representatives can access these objects from any place and at any time of their own choice.
Copyright infringement in the fashion world
And again we dwell on the issues of copyright infringement in the fashion world, since the grounds for violation of such rights will give us an exhaustive answer which elements of us will be interested in identifying and preventing such offenses.
So, the most common method of copyright infringement in the “fashion” business is plagiarism. Here we are talking, for example, about a model of clothing that was presented na the show a few months ago and is in demand among consumers. However, there is only one problem – the manufacturer of such a model not only forgot to ask you about the licensing conditions for the use of your work, but also claims that this clothing model was developed by his designers and all attempts to resolve the issue of authorship peacefully do not end in success for you. You lose your reputation, authorship and profit to pay you legal royalties, and an unscrupulous manufacturer willingly uses your creative achievements for your own enrichment. Unfortunately, in the “fashionable” business – such cases are not an exception, but a rule.
Moreover, here we are not talking about the conceptual aspect of creating a model of clothing, styles and the like. It is legally defined in paragraph 3 of Art. 8 of the Law that legal protection applies only to the form of expression of a work and does not apply to ideas, theories, principles, methods, procedures, processes, systems, methods, concepts, discoveries, even if they are expressed, described, explained, illustrated in the work. Thus, the embroidery technique, the principles of knitting nets, methods of constructing patterns are not objects of copyright. However, the cut method can be patented, then patent law comes into effect. Therefore, the pattern itself, the embroidery instructions, the knitting scheme are objects of copyright, since it uses creativity, author’s design, the author’s set of various techniques to obtain a creative result. That is why when using the instructions, using patterns, you need to get permission from the author.
The key concept of copyright is the product of creative activity. The final form of the model is creativity, as the basis of copyright. The use of loops, styles, their mixing and combinations of textures are methods, methods or principles, that is, everyone can use these methods as and whenever they want to create an author’s work.
Works in the “fashionable” business (models of clothing sketches, patterns, etc.) directly relate to objects of copyright in the category of works of fine art and works of applied art, including works of decorative weaving, ceramics, carving, casting from art glass, jewelry, etc., if they are not protected by the laws of Ukraine on the legal protection of industrial property in understanding the provisions of Art. 8 of the Law.
An exception is only the category of works of folk art (folklore), which do not have specific authors and are not objects of copyright (i.e. artistic patterns of simple geometric forms, embroidered symbols, etc.), but if a certain knitting scheme, a method for combining patterns, combining and alternating such patterns are created, then not a separate pattern as an object of folk art is protected, but the scheme, combination, method embodied in an objective form, have a creative solution and artistic value. Moreover, at the end of the copyright protection period for a work (schemes, methods, combination, etc.), these objects go into the public domain, that is, everyone can use any such object without special permission and remuneration payments.
If you want to protect yourself as an author and establish the primacy in creating a certain type of model clothing, using the material embodiment of your work in the form of sketches, drawings, finished works, then you can post a photo of the model of clothing or the sketch itself on the Internet, while using your own exclusive copyright in relation to such an object. This is the so-called publication (disclosure to the public) of a work by bringing it to the public (publication on the Internet), reproduction of content (content). Accordingly, any further action with this photo posted on the Internet without the permission of the copyright holder is prohibited.
When there is a dispute about the authorship of works used during fashion shows, you will already have a date for posting materials on the Internet (on your own website, on forums), possibly on printing products (if you have an agreement with a design company and Acts of acceptance of sketches or appearance of products with the necessary details). Or even to the publication on the Internet at the address of a fashion house or a specific person-artist, you can send a registered letter or parcel with a receipt notice, which will contain a scheme, description, photo, on paper or in any electronic form the material embodiment of your copyright object. This letter or parcel must not be opened, preserving as evidence for the future in the event of evidence of the creation of such an object earlier (in the message, package, letter, parcel will be clearly indicated the date of receipt of the letter and sending such a letter. This date will be your starting date for an unambiguous answer regarding the primary authorship. However, if your work is somewhat corrected, changed, taking as a basis only the idea, which, as noted above, does not fall under the protection as an object of copyright and is only the essence, opinion, idea, idea of the future of the work embodied in material form, then in this case it will not be considered a violation of copyright.
Copyright objects are protected immediately after their creation, without requiring additional registration. And therefore, the main idea of copyright is that the object receives protection immediately after its creation. The criterion for security, if I may say so, in copyright is the following: creative work with the obligatory objective embodiment of a work is its fixation with the help of various material carriers.
Also, analyzing the question of the unambiguity of the fact that a particular result is an object of copyright, the author should remember that this is only the result achieved by creative work. And one should not forget that until otherwise proven, the results of intellectual activity a priori will be considered created creatively. There is a “creative presumption” regarding intellectual property.
And, of course, it is important that the very absence of novelty, uniqueness and (or) originality of the result of intellectual activity cannot indicate that the result is not achieved creatively and not recognized as an object of copyright. Therefore, the creation of new models from year to year and their demonstrations at shows, trends that change in turn, returning to past eras, but with significant adjustments in the spirit of modernity, fall under the category of copyright objects and amaze with their obvious creative component, if only because they are composed, combined in other schemes and combinations.
One should not forget about the author’s personal irrelevant rights, among which the inviolability of the work plays an important role. The content of this criterion is the prevention, without the consent of the author, of making changes, abbreviations and additions to the work, accompanying the work with illustrations, prefaces, afterwords, comments and other explanations, and the like. If when describing clothes, styles, styles from fashion shows, no original images from the show will be noted, and the photos are taken by you personally or received on the basis of license fees, and the use of such images will be in the amount justified by the purpose (according to the provisions of Article 21 of the Law), then the payment of royalties is not mandatory, and acquaintance with the author in court does not threaten you.
In the “fashion” business, the issue of distinguishing copyright and ownership of a material object in which the work is embodied is fundamentally relevant. In accordance with Art. 12 of the Law, it is clearly established that if the contractor is a clothing manufacturer who was granted such a right to sew models by the owner of the copyright – the customer (fashion house, clothing trademark company), then the works created according to the author’s sketches are only material objects for the manufacturer and copyright remains with the customer. Another thing when it comes to the fulfillment of the order and sketches of clothes, and sewing the clothes themselves. Here it all depends on a professionally drafted contract in favor of the author, taking into account all the features of legislation in the field of intellectual property.
The author himself or the copyright holder can use the copyright protection sign to notify him of the ownership of exclusive property copyright in a work – this is his right, but not an obligation. Therefore, regardless of the presence or absence of such a security mark indicating the year of the first publication (publication, disclosure to the public), the author does not cease to be the author of a work with all rights in relation to this work in accordance with the current legislation.
But what to do in practice to prevent offenses or already on the fact of the emergence of such, to punish the offender?
Theoretically, the copyright protection procedure looks quite simple: you need to take care of the evidence base in advance, simultaneously with the presentation of relevant claims or directly go to court, bypassing the pre-trial settlement of the dispute, if such an appeal is not possible or insufficiently effective. However, everything looks so simple only in theory, and practice dictates its own laws, so you need to prepare accordingly. And one of the main roles is played by a qualified evidence base. First of all, attention should be paid to such circumstances as the existence of copyright (acquired or existing) and the unquestioning fact of violation of such rights in an objective sense.
One hundred concerns the fact of copyright and confirmation of your authorship (except for the certificate of state registration of the copyright object – a work of art), then evidence in court can be, for example, testimony of witnesses who must appear in court and provide their explanations. Witnesses can confirm, for example, that it was this model of clothing that they saw in your workshop or at the show at a certain period of time. And, of course, witnesses should be prepared for clarifying questions: under what circumstances and where they saw these models, how they look, whether they saw them well, did not confuse them with similar clothing models and the like.
However, written and material evidence looks more convincing. Again, based on the specifics of copyright protection in materially embodied objects. Written evidence should include: contracts, acts of acceptance and transfer of work, contracts for the fulfillment of an order, certificates, business correspondence, magazines with the image of models, documents on participation in exhibitions, competitions, competitions of various levels with the image of the author’s works, diplomas, awards, diplomas for the creation of works, television versions of fashion shows, recordings on other electronic media and much more. Material evidence should be considered a mini-model of clothing, previous patterns, draft (intermediate) versions, individual details of clothing. The main task of the listed types of evidence is the obligatory indication of you by the author, involvement in the creation of the work and (or) participation in its creation. And then, if a settlement is not reached, lawsuits with the appropriate requirements for compensation, compensation for material and moral damage, taking into account the degree of violation of rights.
And, of course, the event in the protection of copyright at the world level was the legal dispute in the CHANEL fashion house. The well-known fashion house again appears in a legal dispute over copyright infringement – but this time already as a defendant. An unknown company called Knitwear World accuses the French brand of plagiarizing and counterfeiting its products.
Hearings in the cases take place at the Court of Commerce in Paris. The fact is that, as noted by the plaintiff, the owner of the World of Knitwear company, in 2005 the CHANEL house violated all agreements by breaking the contract with the specified company, and then used one of the clothing models developed by the company for commercial purposes. The plaintiff found out about this by chance when his representatives noticed a familiar motive for clothing in a shop window in Tokyo.
The lawyer of the fashion house CHANEL commented on these accusations as an atypical fact of filing claims for the production of counterfeit products. Fashion houses are known to believe that it is they who own exclusive property copyrights for all products produced by their contractors and for the first time found an opponent who opposed such usual practice.
We can only hope that in the CHANEL house there are still accordingly executed registration documents on copyright development and agreements on the transfer of exclusive property copyright from contractors. After all, a well-known fact in copyright is the thesis – who is the first, the author, and the agreement exhaustively determines between the parties the list and volume of transferred rights with indication of the terms, payments and other significant conditions for this type of agreement. And for the losses caused, the World of Knitwear plaintiff is demanding compensation in the amount of several million euros, which the fashion house CHANEL does not recognize and is trying to refute the false, in his opinion, accusations of plagiarism.
Fashion in copyright or fashion copyright is not a question, but the norm of work in the field of intellectual property. And if the solution to this issue is obvious only to one of the parties and is not supported by relevant documents, then the burden of responsibility to establish the fact of violation will not be in the workshops of designers, but in the judicial offices.