Fashion & Copyright: Securing your design

The position in various EU Member States before this ruling meant that copyright protection would exist only in original works which meet the traditional legal requirements to claim copyright as per the laws of each national territory. The differences created discrepancies between EU and national law when comparing if copyright in a work exists, and when a copyright infringement claim may be brought. 

The ruling attempts to harmonise the position of copyright in original works across the EU, and the CJEU ultimately held that copyright exists in the originality of the works of art. As such, some national legislation will need to be revised where the local laws are not in line with the EU approach.  Based on the decision, if a designer is able to successfully demonstrate originality of a work, they will have copyright protection in the works created.

The decision should mean that it is now easier for fashion designers to benefit from copyright in their design of products across the EU. The brands Cofemel (trading as Tiffosi) and G-Star, both operate in the clothing and fashion industry. Given the evolving pace and innovation of the fashion industry, it is worth noting that the hurdle to demonstrate and prove originality is high. Clear and objective evidence will be required to prove originality in a work, and to ultimately bring a successful claim for copyright infringement. The decision also demonstrates how to potentially successfully defend a claim against copyright infringement, for example, the need for strong evidence to secure and defend your position. 

How to gather the evidence needed?

• When designing clothing and other products, you should keep a record of the original design document. For example, a dated sketch or CAD image signed by the designer.
• If possible, keep the original and scanned dated copies of the design sketches stored in a convenient location where you can easily access them.
• During the design process, designers and companies often look to competitor products. Any information about these products should also be kept in a convenient location. This is to easily identify the differences and originality of your product when compared with others.
• If no sketches are available, try to keep a record as to when and where the product was first distributed and sold within the EU. This is to demonstrate whether your original work reached the market before other designer’s products. This evidence can be gathered by way of;  product launch events, photographs at the retail points, invoices of third parties purchasing  the product, and any agreements with retailers.

What else can you do to secure the designs of your products?

The Cofemel decision also reinforces the principle of the independence of design rights from copyright. Both rights operate separately from one another; but it is possible for these rights to exist in the same article. Design rights are different and limited in the scope of length of protection when compared to the length of protection granted by copyright. As copyright is not a registered right, and arises naturally during the course of the creation of an original work, it is an option to further secure your intellectual property rights by way of a registered design. Possessing a registered right can potentially strengthen your position as a claimant or defendant in copyright infringement proceedings, and given the relatively low cost of securing such rights, it is something to consider.