Copyright and Fashion: A UK Perspective

Even though the UK Government adopted the term “creative economy” in 2006, despite it’s economic importance, fashion is still not recognised as on the same level of copyright protection as other industries and therefore is not awarded this same protection.

The fashion industry blossoms from copycat designs and seasonal product lifespans, though some question whether this has a need to call upon copyright. Protection for the UK’s creative industries is crucial and designers, with the new technological age, need protection of their work like any other artist would.

Does Copyright Protect Fashion?

This article does not explore design rights nor does it say that design rights are not important; the article rather develops and explores how copyright protects fashion.

In the UK, in order to be protected by copyright, the work must fall under the one or more of the 8 categories subject to s3 of the Copyright, Designs and Patents Act 1988.

Case law does not fall in favour that fashion is original artistic work. The most suitable category requires both artistic and a work of craftsmanship.

In the case of Hensher v Restawhile, it was unanimously held that a three piece suite used for mass production was not artistic. Later cases show how designs that are “pleasing to the eye” are not creative. More relevant to the fashion industry, though cardigans and sweaters are displayed in the Victoria and Albert Museum, they are seen as fashion and therefore are not artistic. These judgements show that judges are reluctant to see fashion as artistic. Artistic is generally defined as aesthetically appealing or created as an artistic work.

Lord Reid and Viscount Dilhorne in Hensher v Restawhile stated that craftsmanship must be hand-made however it cannot be limited to handicraft. They also said that artistic is not compatible with machine production.

It is easier to establish craftsmanship from crafts. Tapestry and knitting are treated as crafts. Fashion tends to be craftsmanship however the law on mass production is unclear.

In general, this shows how the threshold for demonstrating artistic craftsmanship is high consequently meaning that most garments are not protected in the UK by copyright. However this is not identical in countries such as France, Germany and the US as they do not have closed list systems.

Is the UK moving towards an open list system?

In Germany, France and the US any work which has origionality can be protected by copyright. In germany, copyright protects “personal intellectual creations” and in France the work must “bear the stamp of the author’s personality.” This is similar to the test in the Software Directive, the Database Directive and the Term Directive of the EU.

In the case of Svaz softwarové ochrany v Ministerstvo kultury, the CJEU held that copyright applies only in relation to subject matter in its original sense in that it is the authors own creation. This was applied in later case law. These cases have enabled the “author’s own intellectual creation” to be protected which is inconsistent with the closed list approach.

This indicates that the harmonised test for originality now applies in the UK. However, Mr Justice Arnold in SAS Institute v World Programming Ltd, stated that just because something was an intellectual creation it didn’t necessarily mean it was a work. The Court of Appeal left open the question as to whether the intellectual creation test defines protectable work in the UK.

Protection in the US

Original works of authorship in the US are protected by copyright and the test is whether the works contain a “modicum of creativity”. The US has a voluntary registration system for copyright.  US law also provides for a fair use exception which is broader than the fair dealing exceptions seen in Europe. This is decided on a case by case basis but the general principle is that the just must be transformative or add to society. The US system therefore allows works of fashion to be protected easier than those in the UK enabling designers to wager a claim in their designs.

The “fashion bill”, was introduced in 2006 by congress however in 2012 its saw its sixth failure to make a law meaning legislation is not likely to change.

Theresa Wright

2nd year Law student