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Is every fashion project protected by copyright?

Cristóbal Balenciaga – one of the most important fashion designers of the 20th century – said that “a fashion designer must be an architect of design, sculptor of form, painter of color, musician of harmony and philosopher of restraint”[1]. A clothing creator should combine many factors in his work. His task is, above all, to show his artistry and create things that respond to the needs of the fashion world. However, in the creative process of activity, he must not forget about – somewhat more mundane – legal issues.

The meaning of work

To answer the question of whether each fashion project is protected by the provisions of the Copyright Act[2], it is first necessary to determine what is actually protected by copyright. The first article of the Copyright Act provides that the subject-matter of copyright is any manifestation of creative activity of an individual character, established in any form, regardless of its value, purpose, and manner of expression. Thus, the work will be the result of human creative activity, supplemented by an original and individual character.

Original and individual – what exactly?

Although the definition itself sounds quite enigmatic, the key is to unravel the original and individual concepts in the legal context. Based on the dictionary meaning of the word “original”, it should be considered that this adjective can be used to define something that is self-contained, peculiar, not imitation or alteration, not falsified and authentic[3]. In the case of fashionable design, it will meet the premise of originality if it is unique and (albeit to a minimum extent) different from other works already circulating. In a way, the creator has to enrich the current state of – in this case – fashion reality with the effects of his work. The statement “individual”, on the other hand, should be understood as “specific, individual, separate, specific”[4]. The individual character of a work means, therefore, that its author’s personal stigma is imprinted in it, and because of this fact, the work is statistically unique.

Can a dress be a piece of work?

Having already had a handful of theoretical information, let us try to answer the practical question – for example, can a dress be a piece of work? It is not difficult to imagine a situation in which any part of a dress will meet the conditions of originality and individuality explained above, and thus be considered a work. It is important that a specific item of clothing, such as an unusually cut neckline, or a train cut, may also be protected by copyright, and not just the whole design.

The positions presented by the courts confirm that fashion designs may constitute work and, consequently, be protected by copyright. The Administrative Court in Poznań recognized the collection of cookery clothes, i.e. aprons, waists, wardrobes, cook jackets, as protected by copyright[5]. The Regional Court in Kraków recognized the design of the men’s coat as a work[6]. In foreign jurisprudence, on the other hand, the design of an evening dress designed by the fashion house Yves Saint Laurent[7] or the design of a cheerleading outfit[8] was considered a piece of work.

As an example of creativity with features of originality and individuality, one can mention works of such designers and fashion houses as Chanel (tweed jackets), Alexander McQueen (shoes on high hoops), Whether – among our native fashion brands – THE OTHER SIDE (oversized cuts with V-shaped necklines on the back), FEMALE STORE (elegant dresses with deep necklines on the back) and OrOr Patrycja Kujawa atelier (theatrical dresses richly decorated with crystals and feathers). They are all distinguished by the originality and individual character of the clothes they propose. It is enough for the recipient to look at a particular project and know who its author is.

To fight or to let go?

The Polish clothing market is one of the most attractive and largest in Central and Eastern Europe, and the latest estimates indicate that its value is 29.7 billion PLN[9]. Therefore, entities operating on it are particularly exposed to the illegal actions of their competitors.

Possible violations are not indifferent to the financial condition of the brand or designer. They also affect the reputation and further perception of potential consumers. Each time a design is copied and marketed, the value of the original decreases and the customer loses interest in it.

Each case is individual. However, if a given project can be considered a manifestation of the creative activity of a specific and original character – the fight for reputation, as well as for current and future clients should start.

Act and set an example

Legal protection of fashion projects is a basic possibility to claim for infringement of rights to a specific fashion project. Although the fight against infringers may seem difficult, long, and based primarily on the difficult art of argumentation – it is worth going through this battle. Polish brands and designers are becoming more and more aware of their rights and the possibility to assert them, using more and more often the protection guaranteed by the registration of a trademark or industrial design. Unfortunately, they still lack the courage to act, and yet a lot is at stake – the continuation of building their own fashion empire.

[1]  A. Jaroszewska, Inspiring fashion-business quotes [in:] fashionbiznes.pl,
https://fashionbiznes.pl/inspirujace-cytaty-modowo-biznesowe/; access of 16 march 2020.

[2]  Act of 4 February 1994 on Copyright and Related Rights (Journal of Laws 1994 No. 24, item 83 as amended)

[3] M. Szymczak (ed.), Polish Language Dictionary, Warsaw 1998, p. 522.

[4] Ibidem, p. 738.

[5] Judgment of 24 April 2013, I ACa 211/13, Legalis no. 722896.

[6] Order of 23 December 2015, IC GCo 289/15, not published.

[7] Judgment of the Tribunal de commerce de Paris, 18e chambre, 18 mai 1994, PIBD 1994 576 III 553, https://www.doctrine.fr/d/TCOM/Paris/1994/INPID19940057, access of 16 March 2020.

[8] Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468, 6th Cir. 2015, https://casetext.com/case/varsity-brands-inc-v-star-athletica-llc-1, access of 16 March 2020.

[9] KPMG Report: The fashion market in Poland. Challenges, Warsaw 2019, https://assets.kpmg/content/dam/kpmg/pl/pdf/2019/11/pl-raport-kpmg-w-polsce-pt-rynek-mody-w-polsce-2019.pdf, access of 16 March 2020, p. 9.

#BRAND #brand design #consumer protection #copyright law #FASHION #work

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