Copy, Paste, Repeat?The Curious Case of Fast Fashion and Copyright Law

Written by: Akanksha Grandhi, B.A.LL.B (Hons.) | Christ University Pune Lavasa 

JUSTICE

Introduction: When the Runway Hits Retail Within Weeks

Visit any Zara shop, and you will see that the clothes offered for sale there bear an uncanny resemblance to those seen on international runways in recent weeks. Indeed, the latest trend in the fashion world seems to lie in copying fashion trends seen on runways and reproducing them within weeks in order to market them to consumers. Fast pace and continuous innovations define fast fashion, and while it has apparently improved the market, it has also raised new questions which require attention from both legal and ethical perspectives.

The question that emerges here is very clear-cut: How does one protect fashion legally and ethically? While the industries of movies, music, and literature have defined guidelines about copyrights, fashion lacks comprehensive legislation in this regard[1]. As a result, companies like Zara have been able to make profits off their products, within the boundaries of the law. It is evident that fashion industry is one of the least protected industries.

Restriction-Based Theory for Intellectual Property and Fashion

Speaking about the theory regarding fashion intellectual property, one needs to consider the provisions made by the Copyright Act, 1957. For instance, according to Section 13[2], such artistic works as painting, drawings, sketches, photos, sculpture, engravings and textile prints should be included in protected literary work. Consequently, one can assume that fashion designs should also receive protection under the above provision. However, there is an issue connected with one restriction that the above mentioned provision has and it concerns the utility side of clothing items.

It is important to discuss the restriction that affects fashion protection due to the distinction between its artistic and utility side. Namely, while any drawing or print of a designer will be recognized as artistic work, the garment design will be regarded as a utilitarian object[3]. In other words, fashion designs can be easily copied if there is no involvement of artistic aspects.

The idea-expression distinction[4] only complicates the matter further. While the copyright legislation protects the expression of the idea, it does not protect the idea itself. For instance, in the case of fashion design, the concept of “a floral maxi dress” or “a structured blazer” is not protected. Therefore, fast fashion takes full advantage of the scenario by following the trend without reproducing any specific features that may attract copyright infringement.

Paradox in Section 15: Success and End of Protection

Other than the narrow scope of copyright protection, another problem resulting from the Copyright Act, particularly Section 15, is added to the list of difficulties with intellectual property law. Section 15 covers the relationship between copyright and designs in relation to a test used in determining whether copyright protection has been terminated.

According to Section 15(2) of the Copyright Act, if the design of an article registered under the Designs Act 2000 [5]has been reproduced industrially more than fifty times, the copyright protection can continue only if the design was previously registered. Though such criterion might seem valid, it brings about a paradox whereby success results in the end of protection.

It is a major challenge for independent designers. The registration process of designs under the Designs Act involves a number of steps that could prove tricky for independent designers, particularly those working at smaller scales. But when they fail to register their designs, then there will be more chances of their designs being replicated by others if they become successful.

Trends in the Judiciary: Limitations of Copyright in Fashion

The Indian judiciary has provided a comprehensive interpretation of the said legal provisions, which has resulted in the emphasis on the limitations imposed by copyright legislation in fashion. This is illustrated in the judgement passed in the case of Ritika Pvt. Ltd. v. Biba Apparels Pvt. Ltd. (2016)[6]. In this case, the defendant, Biba Apparels, had infringed the designs of Ritu Kumar. The Delhi High Court found that these designs could be registered under the Designs Act because they had been reproduced more than fifty times, and thus could not be considered for protection under copyright laws as stated in Section 15(2).

This particular judgement is often used as an example in cases involving copyright issues in fashion.

Ritika v. Biba was based on logic from a precedent such as Microfibres Inc. v. Girdhar & Co.[7], where the courts were emphatic about the nature of art that has been developed to become an industrial product and falls under the purview of design laws. This is because the responsibility of protecting the creation rests with the designer who must predict how the item may develop in the market and take the necessary measures for protection prior to production.

In a similar vein, the case of Rajesh Masrani v. Tahiliani[8] Design makes it abundantly clear that in cases of mass production, copyright does not afford much protection. With the affirmation of the fifty reproductions rule, it is evident that copyright and fashion cannot coexist.

However, while considering the limitations of copyright, trademark provides a good counter-argument. For example, in Industria de Diseño Textil SA v. Oriental Cuisines Pvt. Ltd., [9]the Delhi High Court has upheld Zara’s claim to trademark.

Fast Fashion Brand’s Business Model: Exploitation of Loopholes via Design

The success of fast fashion brands cannot be considered a coincidental consequence of the legal loopholes that exist. It is, rather, a well-reasoned business model designed to exploit them[10] for profit. The brand Zara boasts advanced methods that help them monitor trends in the catwalks and the way celebrities and influencers dress. The information collected is used to produce and offer new products within a few weeks.

An important element of the business model employed by fast fashion brands is related to design modification that ensures no liability under intellectual property laws. Changes in colour, design, or pattern will make it difficult to hold the brand responsible for reproducing substantially similar products.

Also, the fast rate of production and delivery ensures that there is further safeguarding against any form of legal suit. When such an infringement becomes known and suits filed, the product would be off the market by then. It is this aspect that makes legal actions largely irrelevant despite any claims to infringement.

Practical Barriers to Enforcing Rights: Reasons Why Designers Do Not Sue

Apart from the inherent barriers to litigation in the legal system, there are also practical issues that often stand in the way of enforcement by many designers. First of all, intellectual property lawsuits tend to be expensive, lengthy, and unpredictable. Independent designers will not usually have enough money and backing to take on a corporation in court.

Secondly, proving substantial similarity can be challenging in copyright infringement lawsuits. Demonstrating that two designs or artworks are substantially similar will involve the assistance of experts and a detailed examination, which may not necessarily end up being beneficial for the plaintiff. Finally, because fads come and go, by the time the case is decided, the designer’s work may not be worth much anymore.

Ethical Aspects: The Cost of Accessibility

Along with legal issues associated with fast fashion, there are certain ethical issues that arise from such a tendency. While copying of fashion items is not forbidden by law, it generally damages the original designer's creative efforts[11]. In terms of small businesses, there is more chance that their item will be reproduced by large corporations.

It is interesting to note that such issues have already been examined by scientists in relation to the so-called "piracy paradox." Even though piracy is known to promote fashion trends and contribute to industry growth, it leads to some inequality. Replicas are advantageous to consumers because they are accessible, yet this accessibility requires sacrificing the creative element. Therefore, fast fashion operates within the grey zone – the zone that is legally acceptable but ethically unacceptable.

Trademarking as a Strategy for Protecting One’s Brands in the Fashion Industry

Given the limitations that are associated with the protection offered by copyright laws, it became imperative to adopt the strategy of trademarking as a means of safeguarding my own brands. The brand logo, brand name and other related items, which fall under trademark laws, provide the means through which one is able to establish and secure their brands.

It is also very clear why there is usually a difference between products that are considered counterfeits and those known as look-alikes. If you infringe on someone’s trademarks, then it would be regarded as trademark infringement; however, if you copy the features without the trademarks, then you do not infringe on the trademarks.

Global Perspective: A Global Issue

Some of the issues related to the legal system in India are universal to other countries. For example, the copyright law of the US is quite limited when it comes to protecting fashion designs. Likewise, the European Union has tried to resolve this problem through their design right; however, even after all of these attempts at resolving the problem, many difficulties still remain in the implementation of this particular regulation.

The need for change has been acknowledged, especially within global organizations such as the World Intellectual Property Organization, who understand the necessity of modifying current legislation with respect to the fashion industry. Nevertheless, despite all of the efforts undertaken so far, no permanent solutions exist.

Necessity of Reform: Plugging the Loopholes

There is a need to reform the current legal framework in India[12], which is required to cater to the demands of the fashion industry. This can be accomplished through streamlining the registration process, expanding the scope of copyright protection, and implementing reforms suited to the fashion industry.

The first step toward addressing this issue would be to create a sui generis system that could protect fashion designs like other forms of intellectual property. Such a system could provide limited protection to the designs created by individuals for an extended period, allowing sufficient space for growth in the industry. Failure to do so would ensure that the existing regime favors mass producers over independent designers.

Conclusion: The Grey Legal Zone that Persists

The case of Zara is one of the instances that show the difficulties that are encountered in applying fashion law in the modern world. While on the one hand the success achieved by this company can be attributed to the efficiencies and innovations that have characterized it, it cannot be ignored that the existing legal framework also contributed to its achievements.

Through the interplay between the Copyright Act, 1957 and the Designs Act, 2000, it has become possible for design reproduction to become legal while it remains immoral. Considering the current changes in the fashion industry, there is dire need to adopt a more holistic approach in fashion law.

Unless this is done, then the fast fashion model will continue to operate in the legal grey zone.

[1] FASHION LAW AND INTELLECTUAL PROPERTY RIGHTS: COPYRIGHTING DESIGNS, FAST FASHION ISSUES, AND PROTECTING LUXURY BRANDS, , https://ijlr.iledu.in/fashion-law-and-intellectual-property-rights-copyrighting-designs-fast-fashion-issues-and-protecting-luxury-brands/ 

[2] THE COPYRIGHT ACT, 1957 (14 OF 1957), https://www.copyright.gov.in/Documents/Copyrightrules1957.pdf 

[3] Fashion Law: Protecting Fabrics, Prints & Textiles, , https://www.invntree.com/blog/fashion-law-protecting-fabrics-prints-textiles 

[4] When Fashion Moves Too Fast: Impact On IP Protection Of The Fashion Industry, , https://www.mondaq.com/india/trademark/1630428/when-fashion-moves-too-fast-impact-on-ip-protection-of-the-fashion-industry

[5] THE DESIGNS ACT, 2000, https://www.indiacode.nic.in/bitstream/123456789/1917/1/200016.pdf 

[6] Ritika Private Limited vs Biba Apparels Private Limited on 23 March, 2016,

[7] Microfibers Inc. vs Girdhar & Co. & Anr. on 28 May, 2009,

[8] Rajesh Masrani vs Tahiliani Design Pvt. Ltd. on 28 November, 2008,

[9] Industria De Diseno Textile Sa vs Oriental Cuisines Pvt. Ltd. And Ors. on 19 May, 2015,

[10] Inspiration Or Infringement: Evaluating Intellectual Property Rights In India’s Fast Fashion Sector, , https://ijlsss.com/inspiration-or-infringement-evaluating-intellectual-property-rights-in-indias-fast-fashion-sector/

[11] Fast Fashion and IPR: The Unending Saga of Knockoffs, , https://www.arbitrationcorporatelawreview.com/post/fast-fashion-and-ipr-the-unending-saga-of-knockoffs 

[12] IPR and Indian Fashion Industry: Challenges and Possibility, , https://or.niscpr.res.in/index.php/JIPR/article/view/1422