Law firm Bird & Bird raises awareness of IP issues at Textile Forum, the luxury fashion fabric show
Designers, who this week took part in an interactive copyright challenge at Textile Forum, the London luxury fashion fabric show, were split as to whether one fabric design infringed the copyright in another. The challenge highlighted uncertainties and myths that often surround intellectual property rights in fashion designs, according to intellectual property lawyers at Bird & Bird.
“Given the recent spate of copyright and design infringement actions involving parties in the fashion industry, we thought it important to raise the issue at the show, which is attended by designers who have considerable experience in the industry as well as those just starting out,” explains Textile Forum co-founder Linda Laderman.
In the unique challenge, visitors were presented with sketches of two patterned dresses, which were based on designs which were previously the subject of a copyright infringement case that was ultimately decided by the Supreme Court. The ruling was that the later design infringed the copyright in the earlier design.
“The interactive copyright challenge was intended to be a lighthearted way of raising awareness of IP issues among fashion fabric designers”, says Hilary Atherton, intellectual property lawyer in Bird & Bird’s Fashion & Luxury Goods group. “Those designers who did not guess correctly should not be too disheartened. The Supreme Court disagreed with the Court of Appeal, so the answer is not necessarily straightforward, and participants did not have available to them all the evidence that the Supreme Court had”.
“One of the purposes of the challenge was to debunk myths such as the ‘Five Changes Rule’, i.e. that if a designer changes five aspects of a previous design then there will be no infringement, which are just that, myths. However, there are other aspects of copyright law which designers may not be aware of, for example, that even subconscious derivation, where the infringer does not consciously realise he or she is copying an earlier design, can result in copyright infringement.”
“In the particular case on which the challenge was based, the original designwas protected by copyright because it was ‘original’. That’s not to say that inspiration can’t be drawn from elsewhere when developing a design, but it mustn’t be a copy of another copyright work and must involve some ‘labour and skill’ in order to be protected by copyright”, says Atherton. “It was deemed that the infringer had taken “a substantial part” of the skill and labour expended by the designer of the earlier design – one of the criteria for establishing whether copyright is infringed.”
“In addition, an assessment of copyright infringement will involve taking into account factors such as whether the alleged infringer had an opportunity to copy the earlier design”.
While copyright was the focus of the challenge at the show, other rights (such as design right) will often also be relevant to fashion designs.
“Designers should be aware of the various options available for protecting their designs (including registered and unregistered design rights). It is essential that they keep accurate and contemporaneous records of how, when and by whom the design was created,” advises Atherton.
Graeme Payne, a partner in Bird & Bird’s international retail group who specialises in assisting retail and fashion clients expand internationally said, “Intellectual property protection is fundamental to the successful growth for design lead businesses. The challenge at the Textile Forum highlighted what a tricky area both copyright and design protection is.
About Bird & Bird (www.twobirds.com)
Bird & Bird is an international law firm with over 1100 lawyers in 27 offices in Europe, the Middle East and Asia. Its specialist, multi-national, multi-disciplinary fashion and luxury goods team advises some of the world’s best-known apparel, accessories, cosmetics and fragrance retailers and brands. Clients include established businesses, exciting start-ups, SMEs and independent designers.
About Textile Forum (www.textileforum.co.uk)
Textile Forum is the twice yearly luxury fashion fabric show aimed at designers, fabric buyers from major retail groups and brands, established fashion businesses and start-ups, as well as the next generation designers from the top fashion and textile colleges.
Exhibitors supply fabrics, with a small quantity option, to provide inspiration for menswear, womenswear and childrenswear collections, including daywear, eveningwear, bridalwear, lingerie and accessories.