Is Copyright Infringement in Fashion Similar to Music, Or Not?

13/06/2016 10:53

Copyright infringement in the music industry has been a big problem for years. In fact, some of the biggest music artists in the world have been taken to court over this issue. The most recent case is Ed Sheeran. Whether artists do it on purpose or not is a different story.

However, there has been a number of times when large artists have stolen original musical ideas from small artists, and the smaller artist has won, meaning that they received enormous pay-outs from song sales, royalties and sync placements, so you could look at it as a kind of 'Robin Hood' situation.

Copyright infringement is a tricky subject in music, because there are only a limited number of chord progressions and melodies available. After all, there's only 11 notes (or 12 if you include the higher octave). And the same goes with fashion. There are only so many colour combinations and artistic design possibilities, so it's a hard one to judge.

One thing is for certain, though. Court cases surrounding 'copyright infringement' in fashion design, manufacturing, distribution and retail are increasing in popularity. In fact, there is one particular Law Firm in the US that specialises solely in fashion copyright infringement cases.

So how do we define 'copyright infringement' in fashion, then? Let's look at the music industry first.

The way copyright works in the music industry, is once a song has been completed for commercial purposes, the songwriter/artists owns the literary copyrights and the producer owns the mechanical copyrights (unless it was self-produced), but if the producer intervenes during the song-writing process (which they do a lot of the time), then they are entitled to some literary copyrights, too.

To put it simply, these individuals actually OWN the intellectual rights of their music, meaning that if somebody else were to use that song for commercial purposes without permission or write something suspiciously similar, then the artist/producer has every right to sue the copyright infringer (the thief, basically).

That's why if anybody wants to use that copyrighted material for commercial purposes (TV, Film, Adverts, Games, etc), they must obtain a licence from the rights' holder which costs money (why wouldn't it?). This is how artists benefit financially from intellectual rights, and it works the same way in the business world when you look at patents and license agreements.

But in the fashion world, (sadly) it seems that designers/retailers can't actually own intellectual rights for their designs unless it is blatantly original and unique (more on this later), which creates a potential threat for designers, because manufacturers and retailers can pretty much copy whatever they want and compete easily by offering a similar product for cheaper.

The reason this happens is simple. Like music, there is a finite amount of design possibilities out there, and a huge variety of designs which have already been created, which makes it very difficult for copyright lawyers to distinguish, establish and prove what is unique and what is not, so they usually require extensive evidence and have to be clear that the design really is the first of its' kind, and that it belongs to the designer.

The implication? Firstly, it is much harder for designers to be unique when creating new products, and it's even harder to claim intellectual rights over their work (which is slightly unfair in some ways, but understandable in others). And also, if they do happen to create something unique, it's easy for them to be ripped off, which is the sad part.

When something is 'on trend,' yet a designer hasn't been able to claim intellectual rights over their work, multiple retailers can jump on the band wagon (a common occurrence), which is why when you walk into a wide range of shops, you'll always find similar styles and designs. This is accepted as 'normal' in the fashion industry, but is it fair?

I'll leave you to decide.

Thankfully, it's not all doom and gloom, though, as an increasing number of designers and retailers have realised that something is not right. Unfortunately, their unique work was being duped by other retailers, so they went down the law suit route, and amazingly, some of them won!

But unfortunately, others have lost because lawyers felt that their work wasn't original enough and they couldn't prove otherwise. So as you can see, there are pros and cons from all sides. The tricky part is working out what the barriers and the limitations are when it comes to fashion design and working out who's to blame, if anybody. And the same goes with music.

Do we blame the lawyers for being tight, the designers for not being original enough, the consumers for wanting to buy the same old clothes over and over again, or the retailers for having no morals and overpowering independent designers?

Once again, I'll leave you to decide.