creative commons through the looking glass

For the fashion industry intellectual property is a complicated web of legislation and cultural norms. The industry practice of "taking inspiration" from other designers is very common. Equally, 

Brands and logos are of course protected under trade mark, but what comes under copyright is a tricker situation. In Australia, the category of copyrightable "works" that would apply to fashion is "artistic works," meaning that the item protected by copyright must be a "work of artistic craftsmanship." (Of course, written instructions, documentation or explanatory material would be considered to be a "literary work" and would be protected under copyright as such).

What might constitute an "artistic work" or a "work of artistic craftmanship" might include a one-off garment, accessory or item of jewellery, patterns and photos printed on textiles or a design, sketch or pattern for an item not yet made.  If you have published the pattern, it is generally considered that any purchaser of that pattern has been grated a licence to make garments from it. A prototype may be considered to be under copyright depending on the circumstances. The Australian Copyright Council's information sheet Fashion design and costumes sums this up well:

In order to be protected by copyright, the item must be the product of the creator’s skill, special training and/or knowledge. The prototype for a mass-produced article of clothing may be protected as a work of artistic craftsmanship if it is the product of the creator’s skill. It is not necessary that it be made by hand. A work of artistic craftsmanship may also be made by more than one person. For example, one person may design it and another person may make it up; or one person could do the tailoring and another person apply beading or sequins.

 
However, a prototype which is only intended for use during an intermediate stage in the design process may not be a work of artistic craftsmanship in its own right. Similarly, you should not presume that an item of clothing is always a work of artistic craftsmanship: there have been cases where courts have held that garments lacked the necessary qualities, with the result that the designer could not rely on copyright protection.

But even if the work is under copyright, a copy of it may not be a breach of copyright. You see, the design or pattern is an artistic work, but since 17 June 2004, the scope of that protection is limited by the operation of the Designs Act 2003 (Cth). Where someone "reverse engineers" the original you can't sue for copyright infringement. Rather you would move into the scope of the Designs Act. 

The Designs Act covers things that are designed to be mass produced or multiple copies of items be made. But it specially covers what the product looks like, its visual appearance. This might be pleats on a skirt, the cut of a dress or the design on a shirt. It does not extend to the materials used, the feel of it or the function of it.

If the feel, material or function of bed linen could be registered as a design, the market would become monopolised. However, Australian artist Ken Done was able to register pillowcases and quilt covers featuring his unique artwork because they were new and distinctive.

Similarly, while a designer would not be able to register the feel, material or function of jeans, Australian designers Sass and Bide were able to register a unique design for detailed straight leg jeans featuring particular designs of the pockets.

There is a theoretical framework (at least) around the fashion industry that supports the argument that nothing is an original idea. The fashion industry makes an excellent exemplar microcosm of this concept in action. Fashion trends gain popularity and then wane and over time different trends are  re-appropriated (think the come back of fluro right now). When new ideas or concepts emerge if may become the next big trend if other designers analyse it, take influence from it and incorporate elements into their own works. Pretty soon this becomes a trend, and eventually a fashion convention.

But what if designers explicitly allowed this reuse and adaption? What if these kinds of activities and norms were formalised using the law as an instrument? What would this mean for the fashion industry?

Pamoyo, an Eco-friendly, organic and reused vintage, German fashion label, have taken the brave step towards open fashion. They plan to release their designs for reuse under the terms of a Creative Commons Attribution-Noncommerical-Share Alike 2.0 Germany licence. Pretty soon their patterns will be available from here. You can read their blog entry about the decision here.

What does this mean for the fashion industry? Well the licence means that anyone will soon be able to reuse their designs to make their own clothing. They will also be able to adapt the designs, so long as the new design created as a derivative of the Pamoyo one is relased on the same terms. Of course, any reuse must also be for non-commerical purposes.

It is early days for the open fashion movement. It will be interesting to follow what happens from here.

Now, given the complicated relationship between the two areas of intellectual property, can Creative Commons, as a copyright licence, provide an adequate framework for open fashion? The answer? Yes, but what you could potentially give up may not be worth it.

So the best way to explain this is to use a scenario:

At this point Mary no longer has a right to sue for infringement of copyright. To some extent that is ok, because she was allowing commerical reproduction under the Creative Commons licence. But if the scenario continues like this:

You see, it goes like this. Your pattern is protected as an artistic work under the Copyright Act only up until the work falls within the scope of the Designs Act. At that point, under s77 of the Copyright Act you you can no longer sue for infringement of copyright in the artistic work.

For a good overview of copyright law for the fashion industry, see IP Australia's Fashion Rules guide and the Australian Copyright Council's information sheet Fashion design and costumes.