Thursday, October 15, 2015

FASHION - Is it yours? Is it stolen? Does it matter?

In the digital age where something you want can be as close as a click away there is an awful lot to be seen that looks as though it can be just as easily possessed. If you can see it and possess it it must be yours right? Whoa there, slow down, maybe its not as simple as that; in fact it is NOT as simple as that at all.
Panel for the Sydney Fashion Law Breakfast at K&L Gates, L to R Lisa Egan, Anthony Halas, Glynis Traill-Nash, Jonathan Feder. Photographed by Kent Johnson for Street Fashion Sydney.

On Wednesday morning I had the  pleasure of attending the K&L Gates, Sydney Fashion Law Breakfast for a panel discussion and insights into Intellectual Property (IP), Copyright Law and Design Registration as applied to fashion. On the panel were Seafolly CEO Anthony Halas, and esteemed Fashion Editor at The Australian Glynis Traill-Nash, flanked by legal eagles, Lisa Egan and Jonathan Feder. I thought I already had a reasonable grasp on how copyright laws worked but I do have to say, I learn't a whole lot more in a reasonably short period of time; experts are great to have around!

The panel kicked off the case studies with a look at copyright infringement of a Seafolly fabric PATTERN design. No my caps lock did not get stuck. One of the things I learn't Wednesday morning is that the pattern created by Seafolly, in this case an English Rose design; as they had created their own English Rose, that design was COPYRIGHT protected - that is life of the author + 70 years in Australia. In a nutshell, another swimwear company had taken serious liberties with the English Rose design, it went to court, Seafolly had full documentation of their creative process in coming up with their own, Original - English Rose; and it also became clear in-court, that the other guys had been pushing for their people to copy and manipulate the Seafolly design. Had the other guys made changes to the design? YES! They had, but they had not made their own design. This was an important victory for Seafolly as it forced a competitor to remove the pattern-knock-off range from sale, we are talking fabrics not shapes. Also a creative victory for a company that does put a lot of effort into designing unique quality product. Be aware, even purchasing a knock-off fabric design and making/selling anything from it.. can lead to legal disputes.

By the way that is not a mess on the platform in the picture above, that is a collection of samples of the swimwear and Tee shirts coming up next.
Elwood compared with.. Panel for the Sydney Fashion Law Breakfast at K&L Gates, L to R Lisa Egan, Anthony Halas, Glynis Traill-Nash, Jonathan Feder. Photographed by Kent Johnson for Street Fashion Sydney.
Next was Elwood Vs  ____ ; I am not going to go into legal details, only the concepts spoken about. Again, in a nutshell, it was not enough to change details, the design CONCEPT of Elwood was seen as unique and original, beyond the idea of generic collegiate shirt designs. Elwood had created something creative and unique that they styled their designs on. The competition the red copy-cat tee above was forced to be removed from sale. In court it was found that the designer of the copy-cat range had indeed had the Elwood tee on their desk for inspiration..

Something that surprised me greatly is that the shape of your garment is not protected by copyright. So if like Seafolly you design your own fabric patterns, you automatically have copyright protection of that aspect of your fashion creation. But the shapes! The shapes are another matter, for a shape or specific design aspect you need to apply for Design Registration which if granted gives you ten years of protection. You must apply for design registration before releasing your product. I suspect this could be tricky with some fashion production timelines. Still if you plan on starting a fashion revolution it may be wise to look into design registration before taking it to the streets!

One question I asked that I had hoped might be answered or some insight gained, sadly seems to be in the too-hard basket. My question was why the (fashion) magazines don't seem to be doing anything about bloggers etc, willy nilly knocking off their intellectual property (fashion stories/photographs) as 'inspiration' blogs. As a writer and photographer who creates original content, this question about stealing pictures, while not quite on-topic seemed in the spirit of the discussion and close to my heart. Glynis to whom I directed the question to thought it a "very good question"; however did "not have an answer". Could be an issue the magazine industry might want to keep working on..

Of course if you are a designer or a designer working for a fashion company who wants YOU to take design short-cuts, the simple answer would seem to be don't do it! Lets help keep creativity alive by being original and creative. If you have a fashion IP or copyright  problem, Lisa Egan and Jonathan Feder from seem to know the legal position (don't ask me I am NOT a lawyer).

And if you want some free background on Design Registration, try this link to IP Australia.

Play nice, be Original!

Book Street Fashion Sydney to cover your next event.
Kent Johnson, Sydney, Australia.
0433 796 863


Kent Johnson said...

I received this information back from Lisa,
"In relation to taking photos and stories, it is of course a copyright infringement to reproduce someone else's story or photograph, but up to the owner of the work as to whether they want to do anything about it. The more people who get upset about these issues and take the infringers to task over it, the more the message might get out there that that type of conduct is not ok."

Thank you, Of course!

Eva said...

Hi Kent,

This is really great information and the web links are an added bonus! It's refreshing to learn about the legal rights of upcoming fashion designers especially ones with original pattern designs.
I personally know a designer who has very creative, original pattern and design concepts and this information will definitely be welcoming to her. Thank you for sharing. I really appreciate the uplifting energy that your work brings through your posts.

Warmest Blessings