Mental gymnastics – Navigating the copyright / design overlap in fashion

Any creative endeavour potentially involves multiple areas of intellectual property (IP).  Virtually all creative works in the fashion world are equal at the outset, in that they automatically enjoy copyright protection as an artistic work (typically in the form of drawings or sketches).  Another form of protection that can be available for fashion goods is the registered design which must be actively applied for with IPAustralia.

Australia has an unusual position on the copyright / design overlap when a two dimensional design is embodied in a three dimensional work. The law in Australia aims to deal with and eliminate dual protection under Copyright law and Designs law.

The rationale is simple in theory.  Copyright protects an artistic work.  If the creative work heads down the industrial path, by being mass produced, copyright protection may be lost and the product must be registered as a design in order to enjoy IP protection.

However, there are mental gymnastics for designers who are producing creative works on a day-to-day basis.
In the absence of a registered design, a commercially produced dress may have no copyright and no design protection.  However, the print fabric comprising the dress may enjoy substantial rights through no formal steps for protection at all.

A printed image may enjoy copyright protection as an artistic work.  However, an embroidered version of the same image may have no protection if it is not protected as a registered design.

There are also anomalies as to the duration of protection.  In broad terms, 10 years for a  design registration vs the author’s entire life + 70 years for copyright.  Ironically, unlike other forms of IP, with copyright, the author need not take formal steps such as registration in order to obtain copyright protection.

The following snapshot may help wrap your head round the complex design / copyright overlap.

Sketches: Designer makes sketches of a garment.  Copyright subsists in the sketches as an artistic work. Copyright protection is automatic upon creation of the drawings – as long as they are original (i.e. not copies of someone else’s work). Unlike other forms of intellectual property, there is no need to seek registration in order to obtain copyright protection.

Pattern / Sample Garment: There may also be separate copyright in a pattern for the garment and/or in a sample garment. If the pattern / sample garment are not created by the designer, copyright may reside in a third party.

Commercial Production:  Once a commercial quantity of the garment (as a rule of thumb: 50 items) is produced, copyright protection in the sketches is lost and cannot be enforced anywhere in the world, although New Zealand is one exception.

Registered Design: Designer may still have IP protection if she or he has filed an application for a registered design. This protects the visual features of pattern, ornamentation and/or shape and configuration of a garment (or a part of the garment). Remember that the opportunity to obtain a valid registered design in Australia will be lost if the application is not lodged before showing or selling the garment.

Textile / Fabric Designs: As long as a fabric design is purely a representation of 2-dimensional features of pattern or ornamentation applied to its surface (as distinct from woven into or otherwise embodied by the fabric) copyright will subsist in the fabric – even after commercial production.  A designer (and his or her heirs) will enjoy copyright protection (and all its wonderful licensing opportunities) until 70 years after death.

Given that protection can be unwittingly lost and given that protection can be enhanced through other IP regimes, the key in all of this is for designer to turn their mind to the issues at the earliest

Further reading
Broadly Speaking - Breadth of Goods and Services Specifications in AU and NZ Trade Marks
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Microorganism Deposits - Extension of Time to File Deposit Refused
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