The fashion industry is known for its creativity. Yet, its legal framework offers limited protection for the designs that fuel its dynamic nature. Unlike music, literature, or visual art, fashion designs often fail to qualify for copyright protection, leaving them vulnerable to imitation. Uniquely, the fashion giants and trendsetters do not oppose this notion because it promotes the “culture of copying”[1] and “trendsetting” that is ever-so profitable.
However, this lack of copyrightable creativity unduly affects small designers, who lack the resources to compete with large commercial brands and fashion houses. Coming across a video on TikTok[2] brought questions to mind with my new knowledge of intellectual property in Canada.
“Should fashion be copyrightable? How can the industry safeguard the individuality of small creators while preventing the monopoly of the otherwise utilitarian art?”
The Current Legal Landscape
In most jurisdictions, including Canada, the United States, and the European Union, fashion designs are not inherently copyrightable. Copyright law protects original works of authorship, such as paintings or literary works, but excludes “useful articles.”
Section 5 of the Copyright Act, (R.S.C., 1985, c. C-42) [“Copyright Act”] provides for works in which copyright may subsist including every original literary, dramatic, musical and artistic work. Artistic work for the purpose of the Copyright Act is used merely as a generic description of the type of works which follow. It is used as a general description of works which find expression in a visual medium as opposed to works of literary, musical or dramatic expression[3].
Fashion, being both functional and artistic, typically falls outside this scope. While trademark laws protect the brand logos or “marks”, this still excludes the design aspect of the fashion industry. Patent law may in itself protect unique, innovative methods of production, but neither of these avenues addresses the core issue: the protection of creative designs.
For instance, iconic fashion elements like the Burberry check or Louboutin’s red soles are protected by trademarks, but an intricate dress design without branding can be copied with liberty and legality. This loophole has allowed major brands to copy designs from smaller creators, producing knockoffs in large quantities and dominating the market.
Impact on Small Designers
Small designers face challenges in this wanting system. Unlike established fashion houses, they often lack the financial and legal resources to fight against copycats. The issue is aggravated by fast fashion brands, which can replicate unique designs and bring them to market quickly, leaving small designers unable to compete on price or speed. An image of the Shein catalogue immediately comes to mind as it is notorious for cheaper, less quality items of bigger fashion pieces like those of Zara. In the case of this thought-provoking case study; we have a creator who goes by “jaelaofficial” alleging not just a stolen idea; but its expression[4] through a trend report which was ignored yet recreated by the House of CB fashion house two years later.
Another glaring example is the 2017 case involving Zara and independent designer Tuesday Bassen[5]. Bassen’s illustrations were copied by Zara, yet her legal claim was dismissed because her brand was deemed insufficiently recognizable compared to the retail giant. Such scenarios illustrate how legal gaps undermine small creators, discouraging innovation and reducing opportunities for emerging talent. As such, intellectual property law issues have become increasingly abundant for fast fashion brands and have drawn condemnation in the court of public opinion.
The prevalence of knockoffs not only affects revenue and creatives’ economic rights[6], but also damages the reputation of small designers. Original creators may find themselves overshadowed by cheaper, mass-produced versions of their work, diminishing the authenticity and value associated with their brand.
Big Brands and Market Monopoly
Large fashion houses and retail chains benefit immensely from the absence of copyright protections for designs. In turn, they dominate the markets, squeezing out smaller players and stifling creativity. This dynamic harms not only small designers but also consumers, who are presented with fewer truly innovative options. Fashion, as a medium of personal and cultural expression, suffers when originality is suppressed by commercial interests.
Recommendations to Balance Protection and Accessibility
The lack of copyright protection for fashion designs stems partly from fears of stifling innovation and competition. Critics argue that copyrighting designs could lead to monopolies, where large brands hoard rights to basic patterns and styles, hampering creativity and accessibility. However, solutions exist to strike a balance between protecting individualism and fostering industry growth:
- Introduce Limited-Term Copyright for Designs: A practical step would be to establish a limited-term copyright for fashion designs. This could grant designers exclusive rights to their creations for a short period, such as 2-3 years. Such a framework would allow creators to capitalize on their work during its peak relevance while ensuring designs eventually enter the public domain to promote wider innovation.
- Create a Specialized Registry for Fashion Designs: Establishing a registry for fashion designs could serve as a middle ground between copyright and trademark systems. Designers could register their creations for a nominal fee, gaining legal protection against replication for a specific period. The registry could also provide a searchable database, making it easier to identify and respect existing designs.
- Strengthen Protections Against Unfair Competition: Amending unfair competition laws to explicitly address design imitation could daunt fast fashion brands from copying small creators. Legal standards should also be adjusted to lower the burden of proof for independent designers, making it easier for them to challenge knockoffs.
- Promote Collaboration and Licensing: Small designers and large brands could benefit from collaboration and licensing models. Instead of copying designs, major brands could partner with independent creators, compensating them fairly and offering them exposure to wider markets. This approach incentivizes creativity while providing mutual benefits.
Conclusion
The fashion industry’s current legal framework leaves small designers vulnerable to exploitation, while big brands capitalize on the lack of protections to dominate the market. To preserve the industry’s diversity and creativity, legal reforms are essential. Limited-term copyrights, specialized registries, strengthened competition laws, and collaboration incentives offer workable paths forward. By promoting a system that protects individual creativity without stifling originality, the fashion world can maintain its vibrant and inclusive essence; ensuring that small designers have an opportunity to thrive.
[1] Johanna Blakley: Lessons from fashion’s free culture (last accessed 9 December 2024) online: < https://www.youtube.com/watch?v=VoyJmxh97Bk#:~:text=She%20is%20especially%20interested%20in%20the%20surprising,to%20channel%20·%20Beauty%20in%20Exile%20%7C>
[2] https://vm.tiktok.com/ZMk6g4cu4/
[3] DRG Inc v Datafile Ltd (1987), 14 FTR 219 (TD) per Reed J
[4] Winkler v Hendley, 2021 FC 498 per Justice McHaffie: copyright law does not protect facts themselves but rather the original expression of those facts. This is a fundamental principle in copyright law.
[5] See Puglise, Nicole (2016) “Fashion brand Zara accused of copying LA artist’s designs.” The Guardian, 21 July. Available at: <https://www.theguardian.com/fashion/2016/jul/21/zara-accused-copying-artist-designs-fashion>; (last accessed on 9 December 2024)
[6] Théberge v. Les Galleries d’Art du Petit Champlain Inc., [2002] 2 SCR 336; “Generally speaking, Canadian copyright law has traditionally been more concerned with economic than moral rights… The economic rights are based on a conception of artistic and literary works essentially as articles of commerce.” (Binnie J.)
Copyright & Social Media
Communications Law