The fashion industry does not have the same intellectual property protection as other creative disciplines, such as art and film, because clothing is considered a functional item and is therefore exempt from copyright law. Artists and consumers alike are frustrated to find that fast-fashion retail giants are seemingly plagiarizing the work of independent artists. There have been several big cases recently of fast fashion lifting designs from indie designers' Tumblr and Instagram accounts and using the designs under their own brand for clothing, pillows, pins and other accessories without the consent of — or compensation to — the artist who created them.
Though top of the line intellectual property theft is not always intentional, it does happen. With hundreds of employees and so many people in the industry, some tasked with designing for fast-fashion retailers may go online for inspiration and unknowingly steal a design from another artist. Regardless, independent artists who post their artwork online should be apprised of ways to protect their creative rights.
With such little protection available and discussion around this major problem, we have put together the following tips for all designers, fashion retailers and artists to keep in mind to protect their intellectual property.
1. Create a logo for trademark or copyright designs. Trademark law protects items with logos. While logos serve the purpose of establishing a brand, it also helps to protect clothing and design. For example, Gucci's red and green stripe logo and Chanel's interlocking C's logo are both trademarked, thus preventing other brands from using them. Additionally, artists should file for a copyright for unique designs or patterns. The copyright will come into play to assert artists' rights in protection or to allow them to license.
2. Personalize the details. Recognizable designs can be trademarked when specific details are unique and consistent within an artist's work. Trade dress refers to physical characteristics of a design that signify to consumers where the product came from. For example, Hermes Birkin bags are protected by trade dress and other brands avoid creating any designs similar to the bag.
3. Keep digital copies. The Internet helps prove that artists have a pattern of consistency around an original aspect of their designs. Keeping a digital body of work makes it easier to protect them and enables an easier copyright process. Creativity creates creativity: the more someone sees a design, the more they think that they created it and will then use as their own without giving credit to the original source.
4. Monitor copyright and trade dress. When a legal conflict occurs regarding a design, it is important that the artist demonstrates that he or she is actively and consistently policing for designs similar to his or her own. An artist cannot be selective when throwing out the flag; one must always be watching and evaluating the intent of potential IP theft.
What retailers can do
While big retailers definitely have the upper hand in IP conflicts with independent artists, a fashion retailer's brand can be negatively impacted if associated with exploiting artists and plagiarizing designs. In order to prevent making headlines for these reasons, retailers can run trademark and trade dress searches before finalizing designs to see if there is anything confusingly similar already registered or in use. Furthermore, fashion retailers can come to an agreement and form a partnership with the designers, creating a win-win situation.
It's important to note that the fashion industry has little copyright protection to allow for more creative liberty. But with such little protection available, artists need to do their research as it's critical to their livelihood to protect their creative rights.
Ronda Majure is vice president at Thomson CompuMark.