As soon as work is created, a natural right comes into existence called copyright in India. Copyright is not an absolute right of the owner. Copyright law for Fashion Designers creates an incentive for creating fixed original expression. Balancing the copyright proprietor’s desire to restrict access of his copyrighted works to those willing to pay for such access and the public’s interest in freely using the protected work remains the serious issue under Copyright law. The doctrine of ‘fair dealing’ and the provision for ‘non-voluntary licenses’ in specific situations allow the usage of copyrighted work. Copyright vests in original, literary, dramatic, musical and artistic works. It is the original skill or labor in the execution of the work and not originality of thought, which is required. One may not be liable if he has only taken from the main idea be it original. The law requires the substantial use of the expression to presume infringement. Similarity, two different works in itself does not amount to copyright infringement, rather the subject and the source determines the threshold of the infringement. The law provides for both civil as well as criminal remedies for infringement of copyright. The Copyright Act, 1957 is in harmony with the Berne Convention for the Protection of Literary and Artistic Works, 1886 and the Universal Copyright Convention, the Geneva Act, 1952. The term of copyright protection is 60 years.
Copyright law for Fashion Designers as per judicial pronouncements
It is well known that there are various elements of fashion which are protected under Copyright law such as drawings, photographs of models, jewelry, editorial content, fabric pattern and design software, fashion designs which are not always strictly protected. However, in Louis Vuitton Malletier v. Atul Jaggi and Another, Delhi High Court recognized copyright of plaintiff in ‘Toile Monogram’ pattern as well as in the Murakami monograms of a plaintiff. Copyright law for Fashion Designers has a no. of amendments.
The Copyright Act, 1957 recognizes artistic work, be it in the form of drawing, two dimensional or three dimensional; however, Section 15 of the Act restricts copyright in those designs which are registered under the Designs Act, 2000. According to Article 2(5) of the Berne Convention, the collections of literary or artistic works such as encyclopedias and anthologies which, by reason of the ‘selection and arrangement’ of their contents, constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections. In Microfibres, another issue which was raised was whether the arrangement of motifs, flowers, leaves and shapes which have been arranged in a particular manner would be applicable for Copyright as ‘labor and skill’ was applied to have a particular pattern. Court held that such a work fell out of the scope of ‘artistic work’ as defined under Section 2 (c) of the Act. On a contrary; in Nova Ball Bearing Industries v. Mico Ball Bearing, Delhi High Court recognized the copyright in ‘artistic carton’ in which plaintiff packed his items. Similarly, in Mother Dairy v. Sri Vinayaka Milk Products, Delhi High Court held that the plaintiff’s ‘Mother Dairy’ blue logo and trade dress is an ‘original artistic work’ under Section 2(c) of Act.
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The idea which is permitted and an expression which is protected is very difficult for copying. The thin line between the ending of an idea and beginning of an expression is difficult to draw. These are the situations for legal assessment. When we say that an expression must originate from the author and not be copied from another work, the work here is considered to be original when it “owes its origin to the author”. For fashion designers must keep in mind that even if the defendant’s work is found to be substantially similar or even identical to an earlier work, it would still be copyrightable as long as it can be shown by the defendant that he created the work independently of the plaintiff’s work. If the author has utilized the plaintiff’s work, then he must show that he has contributed something more than merely trivial variations, something that can be recognized as his own. At the same time, the author must be able to show some labor, which emerges from his intellect. A drawing which is simply traced from another drawing is not an original artistic work; a drawing which is made without any copying from anything originates with the artist. In the case of compilations, the courts had held that the labor and skill employed in selecting and arranging existing subject matter give rise to an original literary work. As Eastern Book Company v. D.B. Modak, the Supreme Court held that to claim copyright in a compilation, the author must produce the material with exercise of his skill and judgment which may not be created in the sense that it is novel or non-obvious, but at the same time it is not a product of merely skill and labour. The work of compilation must have a flavor of ‘creativity’ to be called original. If a work is created by making use of works in the public domain then ‘sweat of the brow’ test is replaced by a ‘minimum of creativity test’. Copyright law for Fashion Designers in India provides protection to their designs and hard work.