With Fashion week season underway and London Fashion Week upon us, some reflections come to mind about fashion and the issue of copying. Fashion weeks are not only renowned for showcasing the latest fashion designs, but they also seem to be an anchor point for various forms of copying that happen in the fashion industry - whether it be runway looks that are knocked off before designers can get their production line in stores or a window for seeing which designers are copying each other. These reflections come about especially in light of a recent video, fashion designer Alexander Wang has posted to his Instagram account, this past week - pointing out similarities between his 2014 Alexander Wang x H&M show presentation and fashion designer Philipp Plein's recent 'sport' collection shown during Milan men's fashion week - January 2017.
The video, which displays the two shows side by side, include the words "Can I copy your homework. Yeah just change it up a bit so it doesn't look obvious you copied. Ok."
Image: Alexander Wang instagram
The similarities Wang points to, include various looks, the gym style runway set and the similar position of the acrobats who leapt around the set.
But is this copying or just merely inspiration?
Jennifer Leppla, marketing and communications director for Philipp Plein, in a statement to WWD, says that "Copyi[ng] is just not a possibility."
She goes onto say that "I was involved in every step of the production of the Plein Sport FW 1718 show, working closely with the production team, our art director Simon Costin and Mr. Plein...[and that]...the obstacle course in the foreground was custom made for the Parkour team once they were on board for the show, and designed by Mr. Costin. She describes that: "Other sports elements were added as the project developed, ideas usually coming from Mr. Plein directly and brought forward by Mr. Costin, then realized by our production company," and confirmed that: "the shows are always born of a concept in Mr. Plein's head, the visuals are then developed by the team, [and] copying the layout of another fashion show is just not the process used at Philipp Plein."
Even so, this still leaves us with a tricky question of whether fashion shows are even capable of being legally protected against copying? The issue of copying has opened up the space for discussion around protections for the design industry, but what seems to be less discussed is how different forms of creativity arising out of the fashion system, can attract legal protection, such as the format of a ready to wear fashion show.
With London fashion week currently underway, this incident brings into question what the legal position would be on this in the UK? Does the law protect against a runway fashion show being copied?
Well, copyright is regulated in the United Kingdom under the Copyright, Designs and Patents Act (1988). Firstly, as a general rule of thumb, copyright law does not protect ideas or concepts, only the expression of tangible ideas in some sort of concrete material form. So this means that Wang's 'idea' for a sports themed fashion show is not capable of being protected per se, but the tangible expression of it might be, if recognised under copyright law as a qualifying "work." The United Kingdom operates a 'closed list' approach to copyright, and fashion shows are not the subject matter of copyright as such. So, in order for a fashion show to receive legal protection, it must fall within one of the pre-existing categories of works. If it does not, then copyright does not apply. The following types of work that the law recognises as capable of qualifying for copyright protection (under the CDPA:) are literary, dramatic, musical or artistic works; (including sound recordings, films or broadcasts; and the typographical arrangement of published editions).
It is likely that a fashion show could probably be classed as a dramatic work. This is because the courts have interpreted the statutory definition of 'dramatic works' to include a 'work of action, with or without music, which is capable of being performed before an audience' and where there is "movement, story or action," and sufficient unity for the work to be performed again.
Fashion shows nowadays, are about more than just the clothes and a few models walking down the catwalk, but story, drama, and performance. These shows are performed before an audience and require lots of preparation, and as described by Jennifer Leppla above, they are full of action, involve art directors and often a whole team working behind the scenes to bring the production to life. Everything from clothing to accessories are carefully chosen and choreographed with music in an artistic set. Some designers, like the late Alexander McQueen, are very well known for this, and the intensity of his fashion shows often lead them to be called performance art.
Therefore, it may be possible to argue that a fashion show performed in front of an audience, compromises all of the elements of a performance like any other show. While the UK courts have not yet explored whether a fashion show in particular would be a dramatic work, it is clear that the movement, direction, choreography and the models in a fashion show lends itself to these elements.
Copyright protects your work and stops others from using it without your permission, and if it can be established that a fashion show is a dramatic work, and a substantial part of that work is copied, then there could be a case for copyright infringement. Still, the general rule is that there must also be sufficient unity to be capable of being performed again for a dramatic work to exist under copyright law, which the courts have interpreted restrictively. So a fashion show may have difficulty with meeting this requirement, to be recognised as a dramatic work.
In France however, the situation is clearer, under the French IP Code (Article L112-2), all "works of the mind" are protected, whatever their genre, or form of expression, and in France, it is settled law that (provided original) both a designers' clothes and fashion shows are protected by copyright law, which has been confirmed by the French Supreme Court (Cour de cassation). An important consideration to have in mind with Paris couture fashion week only around the corner, a setting where haute couture fashion shows reach pinnacles of creativity.
Unlike France, even though the courts in the UK, are yet to contend with the issue, the highly creative nature of contemporary fashion shows, generate modern questions for copyright law. The issue, as I see it, is whether a fashion show and the models that participate in it are creating a production of an original character, namely a dramatic work, which is eligible for copyright protection - which is an alternative way for a designers work to be protected. If a fashion show is protected, then the next question is, whether copying has been done in relation to a whole or a substantial part of the protected work? To answer this questions the courts look at the similarities between the two works, and whether those similarities are significant enough to infer that copying has taken place. In the case of Wang v Plein, this seems unlikely, even though there are similarities between the two shows, the similarities are weak, too weak to show that a substantial part of his show creation has been incorporated into Plein's to give rise to a successful action for copyright.
John Kaldor Fabricmaker v Lee Ann Fashions, 
Norowzian v Arks Ltd and Guinness Brewing Worldwide Ltd (No 2)  FSR 79; 
Creation Records Ltd v News Group Newspapers Ltd 
Shelley Films v Rex Features 
Green v Broadcasting Corporation of New Zealand
Chabbott, Sophia (2017) Philipp Plein Rep Reacts to Alexander Wang's Copycat Accusation, WWD
Derclaye, Estelle (2008) French Supreme Court rules fashion shows protected by copyright - what about the UK? Journal of Intellectual Property Law & Practice, 3 (5). pp. 286-287