Surfing on web, copyright seems to be the last tender of subject to discuss.
But what about last fashion tender copyright? Fashion designs may have protection as registered design or limited protection as unregistered design. Among these options, Fashion industry and designers would extend copyright protection in order to provide sui generis protection to fashion designs, particularly in U.S.
Facing issues related to protection of apparels design I found how many times – within the last decade – fashion industry and stylist asked for a copyright revision in order to extend to garment designs since the US Copyright law deny protection.
The reason which deny protection to apparel design is due to the conception that garment designs are solely useful articles without any copyrightable elements.
Another substantial reason is the longer term protection – in comparison with design patent protection – and the risk to create a monopoly in apparel market.
Fashion industry and designers suffer design patents protection because the patent process is difficult and expensive to obtain, and entail a lengthy examination process for a field where all is ephemeral and transient. In this context, one question arise: if the fashion creations are ephemeral and transient why should they receive an extensive protection?
As I said, under the U.S. Copyright Act, copyright protection is denied to fashion works on the ground that they are “useful articles”, but if a fashion designer is not satisfied for design protection and he or she is seeking for copyright protection could convince a judge that either the item of clothing is not functional or that its artistic design is separable from its utilitarian part.
Which advantages for designers?
The specific extension of copyright to fashion works would have numerous advantages for designers. First, a copyright owner may seek an injunctive remedy to prevent the imitator of his or her design from making and selling copies of the original. Second, copyright law allows for the imposing and disposal of the infringing items. Third, the copyright owner can recover damages, either actual or statutory, and profits. Finally, the copyright owner may be able to recover court costs and attorney’s fees. This last remedy is especially important in fashion design cases, as it allows small new designers to take on big manufacturers whose greater power and financial resources would otherwise be an insurmountable obstacle (Christine Magdo, Harvard Law School, 2000).
On the other fashion design may receive a design patent protection and can be registered a design if the creation consists of the visual ornamental characteristics embodied in, or applied to, an article of manufacture. Since a design is manifested in appearance, the subject matter of a design patent application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation. A design for surface ornamentation is inseparable from the article to which it is applied and cannot exist alone. It must be a definite pattern of surface ornamentation, applied to an article of manufacture (US Copyright Office definition of design).
The debate in Italy is not heated as in US even if it is the country of fashion and designers.
The reasons could be the various ways of protection:
- Italian Intellectual Property Rights Code (IIPRC – Legislative Decree of February 10th, 2005, n. 30) gives protection for designs and models with particular reference to appearance of the whole or of a part of a product resulting, in particular, from the features of the lines, contours, colours, shape, texture and/or the materials of the product itself and/or its ornamentation, on the condition that they are new and have an individual character (Art. 31 – IIPRC). The right holder may obtain protection for one or more periods of five years up to a maximum of 25 years from the date of filing;
- Registered Community design: the protection is for a minimum of five years and a maximum of twenty-five years;
- Unregistered community design: it is an automatic right and no registration is required, last 3 years from the date the design is first made available to the public. It gives protection only within EU. This form of protection may be useful in sectors which produce large quantities of designs intended for products which frequently have a short economic life;
- Italian Copyright Law, Artt. 1 and 2, no. 10 (as amended by Legislative Decree No. 95/2001) “Works of the mind having a creative character and belonging to literature, music, figurative arts, architecture, theatre or cinematography, whatever their mode or form of expression, shall
be protected in accordance with this Law. In particular, protection shall extend to: (…)
10) Works of industrial designs which themselves have a creativeand artistic value”
Designs may have protection as registered design and/or as works of the mind (copyright).
The exploitation rights of a industrial design shall subsist for the lifetime of the author and until the end of the 70th calendar year after his death.