This article has Pancham Rathod, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Dhruv Shahame (Associate, LawSikho) and Ruchika Mohapatra (Senior Associate, LawSikho).
Table of Contents
It is common knowledge for artisans that it is acceptable, in fact, it is appreciable to copy while learning and it is wrong to copy while selling. The evolution of any field of arts, especially fashion and designing, progresses from inspiration from the well known and popular pieces of art and creating something new out of it. The argument between “Who did it first?” and “Who did it better?” for getting the credit is ancient. In today’s market, striving to become fair, there are certain restrictions on copying designs that are copyrighted by the artists.
In the US, fashion designs aren’t protected by copyright laws and anything printed on a clothing item is no longer considered art. The reasoning for this is that apparels are too utilitarian to qualify for copyright protection. This gives free rein to manufacturers in the clothing industry to copy whatever is trending. This is not the case everywhere. In India, designs on clothes can be protected under the Design Act, 2000. Through this article, the author seeks to differentiate between inspired and copied, through exploration of the subject of fashion in terms of counterfeiting and how it is a deliberate attempt to profit from the original brand’s idea, things to be kept in mind while taking inspiration from someone else’s work of art, the impact of rampant copying in designs leading to dynamism in the trends of the fashion industry and what is there to lose for the designers.
Copied and inspired designs
A copied product can be either a knock-off or a counterfeit depending on how far the product is copied. Any fashion apparel can be called counterfeit if the product is the exact copy of a branded product also bearing the brand name or brand logo but not manufactured by the brand and is manufactured and sold illegally by a third party. This is not just in violation of the Copyrights Act 1957 and Design Act 2000 but also violates the Trademarks Act 1999 in India. Selling a look-alike product in another company’s name is universally a crime. In the year 2018, Forbes stated that counterfeiting is the world’s largest criminal enterprise. In developing countries, there is a popularity of famous brands while the majority of the population cannot afford them. The concept of “first copy” fashion is to provide the population with affordable clothing which looks exactly like the branded ones in trend, especially with the trademark.
There is no doubt in the fact that counterfeiting isn’t just a theft of intellectual property but is also a theft of identity as well which can cause the original brand significant commercial losses. It is a common sight to see the sale of counterfeit apparels , be it clothes, shoes or other accessories being sold by street vendors without any establishment at unbelievably cheap prices and it is common knowledge that these are not the original brand’s products but rather a first or second copy of the original product. Even though it does not sound like a very serious offence there must be awareness about the same.
On the other hand, we have knock-off brands, which can be described as real brands which claim their products have exactly the same designs and features as that of the original product. Knock-off brands often use the argument that their product is not copied but is merely inspired by the original. This is the epicentre of the entire debate of “copied” vs “inspired” and it is not really difficult to differentiate between them. This can be accomplished only if there is adequate awareness about what is inspired from what, which in reality is not the case.
There might be no infringement of trademark in the case of knock-off brands but lifting up the original designer’s work and showcasing them as their own is unethical and is a daunting experience for the designers. In most of the countries in Europe and India, fashion designs can be protected and the knock-off brands can be taken to court. In the United Kingdom there is a protection of 70 years on copyright for a design whereas in France the protection is for 100 years. In India, laws do exist which protect the designs of fashion designers but it appears that there are ways to work around these laws and the enforcement of them is inadequate.
In the case of Ritika Private Limited vs Biba Apparels Private limited ( 2016 ), the plaintiff Ritika Private Limited is a boutique apparel designer brand and was the first to copyright a design that was commercially in use by the defendant Biba Apparels Private Limited, a well-known brand for ethnic wear. The suit was to provide an injunction on production, selling, printing, publishing, or offering the prints or garments using the design by Biba Apparels. To the surprise of the Plaintiff, the court went in favour of the defendant stating that the copyright was granted under the Copyrights Act, 1957, and according to which as the reproduction of the design in question exceeds fifty times, the designer loses her copyright on the design.
The correct tool to be used to protect this design was the Designs Act 2000. The lawsuit was counterproductive for the plaintiff. Hence, awareness of ways to protect intellectual property is important to be understood by designers who would like to defend themselves from other brands to exploit them.
An artist doesn’t have to find inspiration in the same field, the inspiration comes organically from nature. Stella McCartney’s Spring 2020 was on the theme of the exquisite nature surrounding us and she brought it to the apparel in vivid colours.
The inspiration can also come from other forms of arts, exotic cultures, architecture. The most common source of inspiration for designers is the streets. Finding uniqueness in the mismatching attire worn by someone can be intriguing. The concept of worn-out jeans and rags became fashion trends because somewhere a designer got inspired by someone wearing torn jeans publicly calling it streetwear.
Designers who are considered to be artists can not just sell other designers’ work as their own. Art is believed to be original when an artist creates something beautiful out of nothing. There are innumerable instances when fashion designers from popular brands take inspiration from their fellow fashion designers and it is still acceptable if the inspired product is completely different from that of the one it is inspired from.
The major cause of rampant copying of fashion designs in the industry is the recent concept of Fast Fashion. Fast fashion is the concept of increasing the number of seasons from 3 every year to 52, making every week a brand new season with a new collection. In order to come up with so many designs so frequently, the biggest two fast fashion houses Zara and H&M frequently copy the works of other fashion designers, big or small, changing the design maybe a little but the similarity is enough to make it look like the original. In the USA, the knock-off fashion products are ready within days of a fashion show, in fact even before the original design is brought to production for commercialisation.
For luxury brands, which function on the principles of Veblen goods (goods for which the demand increases as the prices go up in apparent contradiction to the law of demand) and conspicuous consumption (spending money to display economic power of income or accumulated wealth of the buyer), fast fashion is an imminent threat. As the saying goes “If everyone has it, no one wants it.”.
A British designer, Stella Maze came up with a design Stella Hues Nicholette booties in 2013 and launched it in 2016, which was evidently lifted up by the American Fast Fashion house Zara in December 2018, with the description “ocean blue leather shoes” as it is the selling point of Stella Hues Nicholette booties. If this happens to a designer starting out in the field of fashion designing, it would be devastating for his/her career and could lead to the shutting down of their company.
It is worth mentioning that Fast Fashion houses, while being extremely successful businesses, don’t just infringe upon the intellectual properties of the designers, it also has a detrimental impact on the environment. It takes 2720 litres of freshwater to manufacture a T-shirt and 10,850 to manufacture a pair of jeans. A single pair of Jeans takes more water to manufacture than a human can drink in over 2 decades. Due to Fast Fashion, no one wears one piece of clothing more than three times and just throws them away. Fast Fashion houses manufacture their clothes in poor developing countries where there are very weak labour policies. The clothes are often made by children who are prone to an extremely dangerous work environment due to no emphasis on safety standards. The infamous Rana Plaza incident in the year 2013 killed over a thousand garment factory workers. No amount of greenwashing can change this major flaw in their business model.
INSPIRED v. COPIED
“Good artists borrow, great artists steal” (mis)quoted by Steve Jobs was previously quoted by Pablo Picasso as “Lesser artists borrow; great artists steal” who simply rephrased Igor Stravinsky, even though all sayings can be said to have originated in T. S. Eliot’s dictum: “Immature poets imitate; mature poets steal”. Ironically, the origin of the quote in itself is an example of great artists stealing. The meaning of the quote iterated by so many great artists over a century is simple. An artist must be aware of what is specifically inspiring in other’s art and make it his/her own by building on to it or presenting it in an entirely different way.
Countries like the USA tend to make decisions based on what is healthy for the economy of creative industries rather than based on what artists deserve. Springman believes that it’s actually the ability to copy that promotes economic progress. Fashion designers take “inspiration” from existing designs and they do it in abundance. When the copying proceeds to a certain point, fashion-forward people would have had enough and they jump off to the next trend that copying itself has helped to set. This rapid cycle created by the freedom to copy actually forces the fashion industry to innovate new designs.
In the world of fashion, there are many challenges for the industry to be fair as the laws to recognise and protect intellectual property are not homogeneous, there is no sensitisation among the consumers about their choices and how it impacts the evolution of the fashion industry. As a designer, it is of the utmost importance to know what laws can be used to protect their intellectual property and how to not cross that thin line between copied and inspired.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: