Copying is an age-old trend in the fashion industry. Coco Chanel once said “if you want to be original, be ready to be copied”.
- The increasing speed of ‘fast-fashion’
High-street brands like Zara and H&M are known for their remarkable ability to convert runway looks into mass-produced and low-priced garments, a concept commonly known as ‘fast-fashion’. And fast fashion is getting faster - new technologies are closing the gap between Fashion Week and the latest high-street offerings. In Chanel’s time, copycats would have to sketch designs from memory after fashion shows and send them to offshore factories to be made into garments, a process that took months. Today’s fast-fashion retailers can simply take a photo of runway models and have ‘inspired-by’ garments on their racks within weeks. Kanye West, who released the third instalment of his fashion collection ‘Yeezy’ at NY Fashion Week earlier this year, fears the shoes he’s designed will one day be 3D printed at home. He likened the effect that 3D printing could have on the textiles industry to how “the internet destroyed the music industry.”
- But is copying a necessary evil?
3D printing aside, there is an argument that fast-fashion could benefit the fashion industry. Co-author of ‘The Knockoff Economy’, Christopher Sprigman, claims that copying is “fuel that runs the fashion cycle, and by making the fashion cycle go faster, it helps the apparel industry sell more stuff.” There is also the view that, in this culture of copying, high-fashion brands not only survive but thrive. Imperfect copies arguably enhance the status of the ‘real deal’. Also brand-loyal customers will continue to purchase genuine items so as to stand out from the crowd that is clad in would-be outfits. Imitation could, in fact, build brand allegiance.
- Protection in New Zealand
Whether the ‘necessary evil’ argument is true or not, New Zealand law prohibits copying. Designers of original fabrics and garments in New Zealand own the copyright in those designs as ‘graphic works’ under the Copyright Act 1993. Copyright infringement occurs when a person copies a substantial part of a work that is protected by copyright without the owner’s consent. Pulling apart a garment and recreating it (‘reverse engineering’) would be infringing the rights of the original designer. So too would copying a distinctive fabric design.
Australia is different – Australian copyright law doesn’t protect design drawings for garments that are mass produced (different for a one-off piece) and so designers generally cannot take action against ‘reverse-engineering’ of such garments unless they have taken steps to register the designs, which most do not. Other legal protections, such as ‘passing off’ and trade mark infringement, can also be used to combat copycats. But the beauty of copyright is that it is an automatic right; no registration is required.
Not all copying is illegal though. Proving originality in fashion can be challenging. As Amanda Priestly, the formidable editor in The Devil Wears Prada, witheringly said, “Florals? For spring? Ground breaking”. Using samples or existing prints as inspiration is generally accepted in the fashion industry. The question is whether an important or distinctive part of the original work has been copied, which is not acceptable. Importantly, there are no hard and fast rules here: the so-called ‘10% rule’ is a myth.
Designers should also be aware of the territorial scope of copyright laws. Not all rules are the same: many other countries don’t have the same level of intellectual property protection as New Zealand does – as noted above, reverse-engineering garments is infringing in NZ but might not be in Australia. So, before entering offshore markets designers should ensure they have adequate protection for their work and/or freedom to use their brands.
However you look at it, the fashion industry is to some extent dependent on designers taking inspiration from others. Replication, derivation and reinvention is what allows the fashion industry to flourish.
By Mark Gavin
Partner
Hudson Gavin Martin
027 548 3393
mark.gavin@hgmlegal.com
