Expert advice on the business of running a garment decoration company

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Q&A

“I’m working with a client to create a bespoke clothing range. Can clothes, or particular features, be copyrighted? We don’t want to be accused of nicking someone else’s designs, but it’s hard not to be inspired by others, and equally we don’t want our designs instantly copied either.”

The law of copyright is found in the Copyright, Designs and Patent Act of 1988 and provides protection from people copying another person’s “representation”.

The original drawings and any other graphic works produced in the design of the clothing would be able to be protected under copyright law as an “artistic work” automatically and would have protection for the duration of the life of the author or creator plus 70 years. The item of clothing itself, though, may be harder to protect with copyright. The clothing may be able to be classed as a work of “artistic craftsmanship” under the 1988 Act, but the threshold for a work to qualify as artistic craftsmanship is quite high and often items of clothing are not protected by copyright in the UK.

Design rights deal with the way things look, specifically with the external shape or appearance of a manufactured item. They can also relate to the product as a whole or to part of it, and are often used by designers to provide protection to their clothing designs.

Design rights can be registered or unregistered rights. Unregistered rights arise automatically when the design is first made available to the public; there are no fees and protection lasts for three years. In order to qualify the design must be new and have individual character. Registered designs also have to be new, of individual character and not be offensive. They are registered with the Intellectual Property Office for a fee of £60 and offer protection for up to 25 years.

You could also have copyright protection for any label you create for the work, provided it is an original work. Under copyright law, it is the original creator of the work who will own the copyright, unless you have covered this situation in an employment contract or there is a specific contract for a commission.

To ensure you do not infringe on anyone else’s copyright you must ensure that you do not copy or take a substantial part of anyone else’s design, although the copyright owner will have to show that you copied at each stage of the creation, from the initial creation (design sketch) to the production of the competing product (the sewing of the garment). There is a common misconception of the ‘five changes rule’ – that is, if five changes are made to a creation, this will not count as copyright infringement – but this is not the case.

Should anyone infringe your design rights then you will need to show that your design right exists (that it fulfils the requirements to be a design right), that you are the rightful owner of the right and that direct copying has taken place. For registered design rights, even if the item is very similar, or created by someone without any knowledge of your design rights, it can amount to an infringement.

For both copyright and design rights it is important to keep records of all stages and dates of the development and marketing of the garment. It can also be helpful to mark your designs with © followed by the year the work was first created for copyright protection or “UK Design Right [Year] [full name of the Design Right owner]” for design right protection.

Estella Hlisnikowski (l) and Jennifer Crocker (r) are trainees solicitors at Mayo Wynne Baxter, which provides a comprehensive and personal service to a broad spectrum of local, national and international clients.
www.mayowynnebaxter.co.uk

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